A few months ago, we ran a series about the ongoing debate about higher education, including legal education – ts merits, cost-benefit analysis, and interviews with those in the field.  In those posts, we remarked that several lawsuits had sprung up around the country against law schools for misrepresenting data about their job placement numbers and salaries. One such suit was filed by a dozen graduates of the Thomas M. Cooley Law School, who alleged that they would not have spent the money to attend the school if they had known the truth about job prospects coming out of the school.  The plaintiffs sought $250 million in damages.

On July 20, 2012, the Michigan federal court where the case was pending dismissed it after the law school filed a 12(b)(6) motion.  A full copy of the Court’s decision can be found here [PDF].  As Judge Gordon J. Quist, the author of the opinion, notes, this dismissal follows the same result in a nearly-identical suit against the New York Law School.  A copy of that decision can be found here [PDF], and our friends at Above the Law make some great points about that decision in this post.

So why are these lawsuits failing?  Well, according to these two decisions,  the schools did not make false representations.  As the Michigan court quoted, “[a] plaintiff’s subjective misunderstanding of information that is not objectively false or misleading cannot mean that a defendant has committed the tort of fraudulent misrepresentation.”  Ouch.  Judge Quist apparently does not think much of the prospective students’ reasoning abilities.

Judge Schweitzer, the author of the case out of New York, reached the same conclusion, but for an opposite reason.  He called applicants to law schools “a sophisticated subset of educational consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post college options.”  It appears that Judge Schweitzer believes these students to be very capable of weeding through the data, but too lazy to do so.  Again, not the best depiction of prospective law students.

And yet all is not lost.  The Wall Street Journal’s Law Blog updated its original post on the issue with a quote from Jesse Strauss, an attorney for the plaintiffs in the Cooley Law School case.  Even though Mr. Strauss seems ambivalent about appealing the decision to dismiss the case, he claims a small victory:   “It’s important to know what this litigation has helped to accomplish. Students applying to law school now have more and better information than ever before.”

True, the ABA has changed some of its reporting requirements to add some transparency, and even Cooley is reporting statistics differently.

The crucial question, however, remains:  if the value of higher education (and legal eduction) is potentially lower than expected or reported, can schools continue to charge more and more tuition?  And will the microscope that has been placed squarely on higher education result in lower enrollment down the line?  We’ll have to wait for the statistics, I guess.

I know you lawyers can, with ease, twist words and meanings as you please.

– John Gay

We here at Abnormal Use imagine the 18th Century wordsmith uttered these words in a derogatory tone, but we can still appreciate his sentiment.  After all, we do pride ourselves in our “interpretations” of laws, contracts, and transcripts.  But, we don’t like to call it “twisting.”  Rather, we are enaging in a “semantic exercise.”

Recently, in Schilf v. Eli Lilly & Co., No. 11-2082, 2012 WL 3139233 (8th. Cir. Aug. 3, 2012), the Eighth Circuit put on a fine display of its own expertise in the linguistical arts.

In that case, the Schilfs filed suit against Eli Lilly and Quintiles Transnational, alleging that Lilly’s failure to warn of a link between an anti-depressant and suicide caused the death of their teenage son.  The 16-year old boy visited his family doctor in November 2004 to discuss his depression.  The doctor gave the boy samples of the antidepressant, Cymbalta.  The medication had been removed from the packaging and, thus, lacked any warnings.  When dispensing the samples, the doctor informed the boy that there may be an increased “association” with anti-depressants and suicidal ideations, but “no completed suicides” occurred during the clinic trials.  The boy began taking the drug and committed suicide a few weeks later.  Thereafter, Lilly revised the literate for Cymbalta to include an FDA-approved black box warning.

The district court granted Lilly’s motion for summary judgment, holding (1) that a warning would not have informed the doctor of anything he did not already know and (2) that the doctor would have prescribed the drug even if he knew of the actual risks.  The Eight Circuit disagreed with both points.

Now, here comes the Olympic-esque semantic exercise.  As to the first point, the Eighth Circuit found that a warning could have pointed the doctor to more knowledge of the drug.  According the Court, the doctor was not aware of a “causal link” between Cymbalta and suicide, but, rather, an “association.”  In support, the Eighth Circuit pointed to the doctor’s deposition testimony, in which he stated that was aware of an FDA study finding such an association, but believed the FDA wasn’t “saying the risk was there.”  Under South Dakota law, warnings of side-effect associations are typically not warnings of causal connections.

Contrary to the doctor’s belief, the FDA press release did, in fact, find a causal connection.  The district court found that the doctor “read” this release and, thus, knew of the risks.  The Eighth Circuit pointed out, however, that the doctor only testified that he was “aware” of its existence. Clearly, a distinction.

On the second point, the district court based its finding on some testimony that the doctor still believed his prescription decision was appropriate.  Not so fast!  Being such fine stewards of the English language, the Eighth Circuit examined the testimony a little more closely.  When asked if there was anything he would differently, the doctor actually answered, “Not at the time.  I did – I did exactly what I would have done.”  “Not at the time” being the operative phase.  If he didn’t know of the suicide related information, he clearly wouldn’t have had reason to alter his decision.

If we were judges, we would have to give the Eighth Circuit high technical marks for its linguistic efforts.  However, instead of lecturing the district court on its interpretation of a deposition transcript, we would still would appreciate some more guidance on that whole failure to warn issue.

“Treason punishable by Gaalak,” proclaims the cover of Coneheads #4, published not so long ago in 1994 in conjunction with the previous year’s film of the same name. Treason, of course, is a crime, and our own U.S. Constitution establishes an evidentiary standard for treason prosecutions. We wonder if the planet Remulak similarly requires the testimony of two witnesses to convict a treason defendant. Perhaps, in this issue, the careful reader may discover the answer to that question, But then again, perhaps not, as how many readers of 18 year old Coneheads comics are that careful?

The most recent issue of the Greenville County Bar Association’s newsletter contains a reprint of our editor Jim Dedman’s recent post on the benefits of local bar membership. Check out page 7 of the PDF!

GWB lawyers Childs Cantey Thrasher and John T. Lay recently published an article titled “Potential Liability for Attorneys Engaging Co-counsel and Referrals” in the most recent addition of the International Association of Defense Counsel (IADC) newsletter.  The article discusses professional liability claims against attorneys using outside counsel and initiatives to avoid these claims.  Click here to read the full article in PDF.

Speaking of firm news, Stuart Mauney, a GWB lawyer and a frequent guest contributor here, has been re-elected to serve another two year term representing the 13th Judicial Circuit in the South Carolina Bar House of Delegates. Oh, and if you want to follow Stuart on Twitter, you can access his account here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Carnival Corporation, and its subsidiary, Costa Cruises, face an onslaught of litigation relating to the January 2012 accident in which a Costa Concordia Cruse Ship ran aground and capsized.  Shocking, right?   The most recent lawsuit filed in Florida state court alleges, among other things, a products liability claim alleging the ship’s hull and power systems were defectively designed.

I’ve always looked at those mammoth cruise ships that resemble high-rise condos stuck on a barge and thought they were an accident waiting to happen.  But, then again, I know nothing about ships.

Based on a press release from the Plaintiffs’ attorneys, it appears that they will float (pun intended) the theory that the Concordia depended on stabilizers to keep it from rolling over in an emergency situation, but those stabilizers were of no help when the ship lost power.   Ergo: defective design.  The release states that Carnival was aware of problems when in February 2010 the hull of Carnival’s Costa Europa was punctured against a dock which created a small hole 6 foot that caused to ship flood and list.  It further states that in November 2010,  the Carnival Splendors ship was stranded off the coast of Mexico due to a catastrophic failure of a generator in one of the engine rooms as well as the failure of a backup generator.

The blogosphere is already analyzing the liability claims in this matter. Again, I’m no seaman, but a purported naval architect and the author of The Old Salt blog finds such a theory is way off base.   He notes that, in spite of their name, stabilizers on cruise ships have almost nothing to do with the stability of the ship.  He believes that ultimately the design did not cause the Concordia to capsize.  Apparently, “[a]ny ship suspended on rocky ledges at the bow and stern with the midships no longer supported by the buoyancy of the water, will roll one way or another.”  Who would have thought that hitting a huge rock, as opposed to a defective design, could have been the cause of the collision?

On July 9, the Food and Drug Administration Safety and Innovation Act (FDASIA) was signed into law by President Obama.  Thanks to the FDA Law Blog for the correct pronunciation of the acronym–“fuh-day-zha.”  This law focuses on several goals.

Under FDASIA, the FDA can collect “user fees” in order “to fund reviews of innovator drugs, medical devices, generic drugs and biosimilar biologics. It also reauthorizes two programs that encourage pediatric drug development.”  Other provisions of the FDASIA aim to improve pharmaceutical supply chains, change approval and regulation processes, and provide incentives for the development of drugs to treat rare diseases.

Part of the effort to combat drug shortages includes provisions requiring manufacturers to notify the government of any problems or issues that may lead to shortages down the line; in the past, such reports were completely voluntary by the manufacturer.  Manufacturers who fail to report under the law are subject to sanctions.  More about the FDASIA’s provisions with regard to drug shortages can be found here.

Other sections of the law incentivize manufacturers to research and develop products for antibiotic-resistant infections, expedite the approval process for certain products, and regulate “medical gases.”

If you’re up for some light reading, the FDA Law Blog provides a link to a 75-page “summary” of all 11 titles of the law by the FDA powerhouse firm Hyman, Phelps & McNamara, which can also be found here.  Or, if you think that a summary just isn’t enough to satisfy your curiosity, you can read the law itself here.

Napalm is a gel-like incendiary agent that has been used in warfare weapons for decades.  What makes napalm different from any other firebomb type incendiary agent such as gasoline?   The gel clings to what ever it touches, creating a large burning area around the target, thereby decreasing the need for accuracy.  Doesn’t this sound like a perfectly safe type of fuel to use in adding ambience to your backyard?  Well, it wasn’t napalm, but an Alabama man has sued, alleging he suffered severe burns when his girlfriend poured gel fuel into a fire pot which ignited and hit his neck, chest, and face.

In his lawsuit, the plaintiff claims the fuel gel and fuel pot were defective, unreasonably dangerous, and carried “an extremely high risk of combustion” with potential for serious injury.  According to the complaint, in May of 2011, the plaintiff was using a fire pot “as instructed” along with several family members and his girlfriend.  When his girlfriend saw the flame had been extinguished, she added more fuel gel, which caused a “flash fire explosion” that “bathed” the plaintiff with the fiery substance.  His family attempted to douse the flames with water, but the plaintiff still suffered severe burns and had to be airlifted to the University of Alabama Birmingham burn center.

In September of 2011, the U.S. Consumer Product Safety Commission announced a voluntary recall of gel fuels by several manufacturers, including Bird Brain, Inc., which was named in this lawsuit.  The real problem with the gel fuels is not that it can combust when poured onto a lit flame.  That could happen with any incendiary agent.  Instead, the problem lies in the fact that the flame can be difficult to see and vapors from inside the gel container can be ignited by the flame. This can, in turn, cause an explosion, and the effects are compounded by the fact that the burning gel sticks to the skin and can be difficult to extinguish with water.

Frankly, this suit may not bode well for the defendants.  Then again, it’s certainly early in the game, and we’ve only got one side of the story.  If this one goes to trial, we’d expect there will be a bit quibbling over whether the term “napalm like substance” is objectionable and whether this video from the Consumer Product Safety Commission is admissible.

Evidence of a plaintiff’s use of drug and alcohol is often admissible in a personal injury action.  While prejudicial, the usage of such substances is highly relevant when it contributed to causing the injury of which the plaintiff complains.  Simple enough.  But what happens when there is evidence of drug use in product liability litigation (by a plaintiff, not a manufacturer)? You can seek the support of drug rehab centers to treat patients with drug addiction. But the same cannot be assured when there is evidence of drug use in products. Certainly, a product remains defectively designed or manufactured regardless of the user’s propensity to indulge in body altering substances, right?  Maybe not, says the Western District of Louisiana.

In Graham v. Hamilton, No. 3:11-609, 2012 WL 1898667 (W.D. La. May 23, 2012), the plaintiff’s alleged that the door latch design in a Chevrolet Camaro was unreasonably dangerous because it allowed an unlocked door to open during a motor vehicle accident.  As plaintiffs, the widower of the driver and the guardian of a child passenger, argued that had the door latch not been defectively designed, the driver would not have been ejected, would have survived the accident, and rescued her child before he died when the vehicle caught fire.

But there is one problem – the driver was under the influence of marijuana at the time of the accident.

The plaintiffs moved in limine to exclude the evidence of drug use as unfairly prejudicial.  They argued that the mere mention of marijuana would

[C]reate an over-arching presence in jury deliberations which would cause a miscarriage of justice related to the issues of whether the Camaro was defective . . . .

The Court agreed that the evidence was highly prejudicial; however, the potential prejudice to the plaintiffs did not outweigh the probative value of that evidence.  According to the Court, the driver’s use of marijuana made it more likely that she caused her injuries and less likely that she could quickly remove her child from the vehicle.  As such, this evidence should be left in the jury’s hands.

We here at Abnormal Use don’t intend to engage in a socio-political debate regarding the use of marijuana.  But under the facts of this case, we must applaud the Court’s decision.  While we have no idea whether the design of the door locks was defective, a plaintiff’s own comparative fault must be considered.  The question is not whether product can be defectively designed when the user is high.  Rather, the question is whether a plaintiff should be able to recover when, despite the alleged defect, he had a hand in causing his injuries?

Who can resist a comic book story entitled “The Death of Superman”? Depicted above is the 1997 graphic novel collecting various issues of assorted Superman titles originally published in 1995 and 1996. We’d never heard of this proceeding, certainly one that could compete for the coveted “trial of the century” moniker. Wikipedia summarizes the story as follows:

Weakened after a titanic battle with the monstrous villain Parasite, Superman inexplicably finds himself shackled and under arrest by a group of intergalactic officers. Taken to another galaxy, the Man of Steel has his powers negated and is instantly put on trial by a fearsome alien tribunal. Discovering that one of his relatives contributed to the annihilation of the Kryptonian race, Superman is found guilty of the crime due to ancestry and sentenced to death. Now with his powers depleted and the jury in, Superman, with the help of Superboy, Steel, Eradictor, Supergirl, Alpha Centurion, and a mysterious fellow prisoner called Mope must find a way to escape his sentence before his execution; but the alien tribunal has enlisted the help of the Cyborg Hank Henshaw to prevent Superman from escaping due punishment.

We’re not sure what rules of procedure would apply in that setting, but we bet Superman found his way out of that situation somehow.

Congratulations are in order! Our own John T. Lay was elected as a new member to the International Association of Defense Counsel (IADC) Board of Directors at their Annual Meeting in July. For more information, please see here.

“So what if they probably let a guilty man go free?” writes Mike D’Angelo of The Onion A.V. Club in a piece entitled “Did 12 Angry Men get it wrong?” Very interesting reading, that.

I ran across this story recently of two men who were detained for two hours at the U.S.-Canada border after border agents discovered that the pair were attempting to bring illegal firearms drugs invasive bug species chocolate kinder eggs into the Unites States.

You know, kinder eggs – the chocolate eggs with the toy inside.

Now, I get it.  Biting into one of these eggs is potentially tricky business – the toy inside is hazardous to teeth and dental hardware, and depending on the size of the toy and the size of the person eating the egg, a potential choking hazard.  But I would never have guessed that the possession of chocolate could subject the smuggler to a hefty fine.

But, like the men who were questioned about the contraband, I wonder why the eggs weren’t even confiscated from their car.  Indeed, the pair was eventually allowed to bring the chocolate into the country.  So much for border security.

Reading this story made me curious about two things.  First, from a products liability perspective, what happens now if one of these eggs does cause someone to choke or lose a filling?  Who could face potential liability?  Can a manufacturer be held liable for injuries caused by a product in a country where the product is banned?  What about the U.S. Government, which allowed a banned, “adulterated food object” enter the country it knew was a choking hazard?  Or, the men who, after being detained, would have been aware that they were distributing a hazardous food?

Second, I became curious about what other odd items have been banned from import into the United States.  I consulted the U.S. Customs and Border Patrol website, but really all I could find was this general list, which failed to provide any real details about specific products that, if discovered, might be confiscated.

I am, however, now aware that I cannot import dog or cat fur into the U.S.

Chew on that one for a little while.

We here at Abnormal Use are a lot of things.  We are not, however, fashion gurus.  Sure, we can appreciate the look of a tailored suit, but you won’t catch us perusing Vogue for the latest fashion trends.  We are lawyers, after all, not Project Runway contestants.  Until fashion crosses paths with the law, we’ll eschew that trade and give it no screen time on this award winning blog.

Alas.  William Peacock of The Chicago Personal Injury Blog has done the unthinkable – discuss the legal ramifications of “skinny jeans.”  Apparently, skinny jeans pose dangers of leg numbness, nerve damage, and . . . twisted testicles.  Ouch!  According to British medical experts:

Twisted testicles occur when tight trousers prevent the spermatic cord from moving freely, meaning it twists and leads to testicular torsion which cuts off the blood supply requiring immediate surgery to prevent a gangrenous testicle.

Again, ouch! Products causing gangrenous testicles? There must be some potential for product liability litigation!?!

While there may be some potential for litigation, we doubt skinny jeans will ever turn into the next mega-class action suit.  As Peacock correctly points out, wearing skinny jeans presents serious issues of comparative fault:

In other words, the idiot in skinny jeans is held somewhat responsible for his own testicular torsion. And if a jury thinks that the wearer is more than 50 percent at fault, the manufacturer is completely off the hook.

Even without the knowledge of scientific research, it is doubtful the reasonable man would expect to confine his nethermost region in such a way without fear of some repercussions.

No one ever said looking beautiful is easy.  For guys, if for some reason that means wearing skinny jeans, then the price just may be gangrenous testicles.