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.

We here at Abnormal Use have blogged about a few cases involving the Crashworthiness Doctrine, otherwise known as enhanced injury cases.  As we have discussed before, the theory is that although a plaintiff might have suffered a finite number of injuries and damages because of an initial accident or occurrence, his injuries are exacerbated, or he suffers additional injuries, because of some product defect.  More recently, we discussed the concept of comparative fault as it pertains to these cases in the context of a Montana Supreme Court decision.  Read our prior post here.

This week, we were alerted by fellow blawg The Product Liability Monitor to a fight that has been occurring in Florida over this doctrine, which started when the Florida Supreme Court issued its decision in D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001) [PDF].  Like the Montana case, the dispute centers on this idea of comparative fault.  A prior post by The Product Liability Monitor summarized the facts and procedural posture of D’Amario as follows:

In D’Amario, the plaintiff was riding in a 1998 Ford Escort when it crashed into a tree.  After hitting the tree, the car burst into flames.  While the driver – who was intoxicated at the time – was killed, the plaintiff survived but suffered serious injuries.  Subsequent to the crash, the passenger’s mother sued on behalf of her son, alleging that the car’s relay switch failed to disengage the fuel pump on impact.  This, she alleged, caused the post-collision fire and the injuries to her son.  At trial, the jury was permitted to consider evidence of the driver’s negligence and thus, the issue of comparative fault.  In doing so, it found for the defendant car manufacturer.  Id. at 428.  On appeal, the Florida Supreme Court reversed.  That court held that while the principles of comparative fault may apply to the causes of the first collision, they do not apply in crashworthiness cases where the sole focus is on the secondary injury. Id. at 441-42.

Well, the Florida legislature didn’t find that to be a wise holding.  In fact, the Florida Senate introduced a bill that would entitle “judges and juries . . . to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.”

Well, as reported by The Product Liability Monitor, D’Amario will now be given a neat little red flag in your next Westlaw search, because the Florida legislature has passed that bill.  The real kick in the teeth to plaintiffs?  The law applies retroactively to pending cases.

We here at Abnormal Use typically discuss products liability issues (or even different areas of substantive law), but we feel compelled today to stray off topic and comment upon the passing of one of the greatest bands of the last three decades:  R.E.M.  Last week, the group announced that it had “decided to call it a day as a band,” bringing to a close a 31-year career which entertained not just generations of listeners but also generations of lawyers (thereby making this somewhat appropriate for a law blog). They were pioneers of what was once known as college rock music. They released many fine albums. For years, the band’s lead singer, Michael Stipe, was both literally and figuratively, the dean of alternative rock music. The band was, as some have said, “insanely influential.”

There is no question that the band’s work in the 1980’s and early 1990’s – from Murmur, Reckoning, Life’s Rich Pageant, Document, and Automatic for the People – resonated with listeners in an unparalleled way and provided the soundtrack for many fondly remembered moments. This is the band that wrote such songs as “So. Central Rain,” “These Days,” “The One I Love,” “Fall On Me, “Sweetness Follows,” “Find The River,” and so many more songs that will be admired and listened to for many, many years to come. It may sound silly, but for those of us who truly enjoy music, particularly R.E.M.’s era of music, the group’s passing is not unlike the jarring news of the death of a once close friend (albeit one with whom we lost contact many years ago).  We always figured they would be there, out there somewhere making music, whether or not that music was as good as it once was when we first encountered them so long ago. But now the band belongs to the ages.

In its later years, the band lost much of its edge. Certainly, like so many other groups, the band’s initial drive and ambition was tempered by mega success, and in response, it petered out a bit.  Later albums like Up, Reveal, and even this year’s Collapse Into Now, were remarkable only in that they were released by a band once so adored by so many, not because of their relative individual merits as works of art. But, as we know, acts like R.E.M., U2, The Rolling Stones, and even Bob Dylan, still live and thrive based on the good will engendered by their earlier, far more brilliant work.  Thus, even those later mediocre albums received a benefit of the doubt that a different band releasing a nearly identical album would never receive. Perhaps that kept the band in business longer than was prudent, but there was always the hope, among their fans (and presumably within the band itself), that it would recapture the creative energy it once wielded.

However, it’s interesting to speculate what would have happened if R.E.M. had broken up a decade and a half ago, perhaps after the release of 1992’s Automatic for the People (contended by some, including this writer, to be the band’s finest moment). Would Stipe still have mentored Kurt Cobain, Courtney Love, and Radiohead’s Thom Yorke? Perhaps Stipe might have begun a solo career, reinvigorating his path in a way not unlike Morrissey did after the destruction of The Smiths in the late 1980’s? Maybe Peter Buck would have still found work, if not fame, in obscure musical projects like Tuatara? Surely, Mike Mills, who composed many of R.E.M.’s finest songs, would have discovered suitable musical opportunities.  Whatever the case, had R.E.M. left music on a high note, the band would be remembered like those acts that released several excellent albums and left the stage before their members’ creative impulses soured or atrophied as a result of age.

A personal aside: I can still remember the first time I heard “Drive”, the lead signal off of Automatic for the People.  I was fortunate enough to be able to see R.E.M. play in concert on two occasions.  The first was in Austin, Texas in September of 1995, with Radiohead and Natalie Merchant serving as the opening acts.  (Check out the set list for that show here). At that time, R.E.M. was touring in support of 1995’s Monster, an overdone electrified album which, though inferior to the band’s previous work, still offered some catchy and radio friendly singles (a feat the band was not really able to accomplish again in subsequent years).  I saw them again in 1999 in San Antonio, Texas with Mercury Rev and Wilco as openers.  (That set list is here). Then, the band was beginning its slow decline, and it appeared that its members were more interested in entertaining themselves than the crowd that had assembled that day to see them. But it was still fun. Another fun story: In May of 2010, Steve Wynn, who once fronted the fabled 1980’s college rock band The Dream Syndicate, played two back to back shows at a tiny rock club in Atlanta, and at each, he played a full Dream Syndicate album. While at one of those shows, I turned to my right and saw I was standing right next to Mike Mills, who was clearly enjoying Wynn’s performance.

In the end, the creative slumps of the band’s later years don’’t matter.  The band did something that so few musical acts are able to do: For a period of time, they released a series of fantastic albums which listeners still enjoy and respect decades later. They captured, and in many ways, personified, a moment in music that influenced many to come.  A fine epitaph, that.

(For another lawyer’s take on the demise of the band, see this piece by Pennsylvania’s Jay Hornack a/k/a Panic Street Lawyer).

The comic book cover above, that of Action Comics #301, published way back in 1963, presents a bit of a dilemma for Superman, the apparent criminal defendant. “Superman, the people will prove that you killed reporter Clark Kent because he discovered  your secret identity,” asserts the district attorney.  Meanwhile, Superman thinks to himself, “How can I prove I’m innocent without revealing that I am Clark Kent?”  Well, we think one thing he might have done would have been to simply walk into the courtroom as Clark Kent, rather than Superman, thereby obviating the need for a trial. Our favorite part: The exhibit tag on the suit says “Clark Kent’s Clothes” instead of Exhibit A.

Filthy files may be destroyed, says the South Carolina Supreme Court. (Hat tip: Legal Profession Blog).

Today, in Columbia, South Carolina, the South Carolina Bar is putting on its 2011 Solo & Small Firm CLE and Annual Meeting, subtitled “Exploring the Business Side of Law Firms.” There is a heavy emphasis on legal technology at this conference, which is why we’ll be there to check it out. (We are looking forward to the speeches on DropBox and Cloud Computing, and there’s even a presentation on “Using the iPad in Litigation!”) If you find yourself there, seek us out! We’ll also be live tweeting the event from our official Twitter account, which you can find at @GWBLawfirm.

The Risk Management Monitors lists “The Ten Most Dangerous Jobs in America.”

Five years ago this week, the Legal Profession Blog was born. Mike Frisch of that site reflects on the occasion here. We here at Abnormal Use are big fans of that site, and we wish them a happy birthday.

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.

Plaintiff’s counsel and defense counsel are equally guilty of the well-known and respected legal strategy called “throw everything against the wall and see if something sticks” strategy.  It starts with the complaint when Plaintiff’s counsel pleads every cause of action under the sun.  It is perpetuated when defense counsel pleads every affirmative defense in the known universe (including our favorite, laches).  Both are hoping, sometimes beyond hope, that when the issues are finally clarified, and both sides begin to determine what the case is actually about, they will have pled correctly.

Sometimes, though, it doesn’t work out that way.  In Haynes v. Cyberonics, Inc., No. 1:09-CV-2700-JEC, 2011 WL 3903238 (N.D. Ga. Sept. 6, 2011), Plaintiff Cloys Haynes sued the manufacturer of a device called a Vagal Nerve Stimulator, which had been implanted in his neck to control epileptic seizures.  He claimed that a few months after the device was implanted, he suffered various symptoms, including feelings of electric shock and tingling.  He also alleged that he suffered permanent left side neurological damage and chronic pain in parts of his body, including his throat and ear.  Ultimately, Plaintiff underwent surgery to remove the original device and replace it with a new, identical device. Problem for Plaintiff:  During the surgery to replace the device, a diagnostic test was performed on the original nerve stimulator. It was found to be normal.  No other testing was done.

Plaintiff’s original causes of action included strict liability, negligence, breach of warranty, punitive damages, and loss of consortium. Plaintiff later amended the Complaint to add a negligent manufacturing defect claim. He also sought attorneys fees for his troubles.

Just prior to the expiration of the discovery deadline, Plaintiff moved to have the case dismissed without prejudice.  Not surprisingly, the defendant opposed the motion and filed a motion for summary judgment, as well.  It also subsequently filed a motion to allow for supplemental briefing based on new preemption law in the 11th Circuit.  That motion was granted by the Court.

The Defendant based its summary judgment motion on the doctrine of preemption and asserted that all of Plaintiff’s causes of action failed in the face of this super-defense.  We’ve blogged about this defense before.  It’s awesome.  As the Court in this case noted, “[u]nder the doctrine of federal preemption, state laws that conflict with federal law are ‘without effect.'”  The Court also provided a very nice articulation of the test used in such cases:

In Riegel v. Medtronic, Inc., the Supreme Court determined that this express preemption clause will bar common law claims arising from injuries caused by FDA-approved medical devices in many circumstances. Tracking the language of the statute, Riegel set forth a two-pronged test for deciding whether state claims are preempted. First the district court must determine whether the federal Government has established requirements applicable to the device. If so, the court must then determine whether the plaintiff’s common-law claims are based upon state law requirements (1) that are “different from, or in addition to” the federal ones and (2) “that relate to safety and effectiveness.”

As we’ve previously noted on this site, Daredevil is a Marvel Comics superhero whose alter ego, Matt Murdock, happens to be a practicing lawyer. Murdock is  blind; his heightened other senses serve him well as a costumed vigilante.  The point: He’s a lawyer, thus, we can write about the character on our law blog! (If it’s been a while since you read comics, you might recall the 2003 film, Daredevil, which starred Ben Affleck in the title role.).

In his private life, Murdock is a partner at the small New York City firm of Murdock & Nelson, which handles, among other things, personal injury and civil rights cases.  Murdock’s partner, Foggy Nelson, is a brilliant attorney  who helps cover for Murdock when he’s out fighting crime.  Just a few months ago, Marvel Comics rebooted the Daredevil comics series and brought Mark Waid on as the writer of the new series. Waid is known for such popular works as Kingdom Come and Superman: Birthright. As Waid takes responsibility for the character, Daredevil finds himself a persona non grata in the eyes of other superheroes. In fact, because of some recent exploits, Daredevil’s secret identity has been compromised, and Murdock is now attempting to rebuild his life and law practice. Waid was kind enough to agree to an interview regarding the challenges of writing a lawyer superhero character. Waid’s latest issue, Daredevil #4, hits the stands tomorrow, and the first three issues can be found at any local comic shop.  Our interview with him (which includes a few minor – though clearly marked – spoilers about tomorrow’s Daredevil #4) is as follows:

JIM DEDMAN: Matt Murdock has two full time jobs:  attorney in private practice and costumed super hero.  You’ve described that as a sort of a “paradox of a vigilante by night, lawyer by day.”  How does he manage doing both those tough jobs?

MARK WAID: Like all good comic book superheroes, he manages to squeeze an awful lot in a 24 hour day.  When I go to the bank and the post office, I’m done, and I have to lie down.  But these guys, in Matt’s case, one of the things that’s enormously helpful to him is that he relies very, very heavily on his partner and best friend, Foggy Nelson. Their dynamic is such that Matt is brilliant in the courtroom.  He is a showman, he is charming, he is well spoken. What Foggy brings to the table is . . .  an eidetic memory for court history and for case history. So he’s the one who was always in law school, nose in the books, 23 hours a day, while Matt was out chasing skirts and stuff.  So, if you will, Matt’s the face, and Foggy’s the brain, and sorry to say, the brains have the harder job.

JD: Nelson & Murdock is a small New York City firm. You’ve mentioned that you’ll be introducing some interns and assistants at the firm in the future, which is foreshadowed at the end of issue three.  How do you go about depicting the day-to-day operations of a law firm in the comic book medium?

MW: With all due respect to the fine lawyers who have represented me in the past and can sue me out of existence today, basic office law work is not the most terribly visual thing in the world for comic books.  So, we don’t spend a whole lot of time in the Nelson & Murdock offices and what time we do there is – to the chagrin of many of my lawyer friends – is sort of the TV and comic version of what a law office looks like, which is not reality.  People having fun all the time.  People are having parties, blah, blah, blah.  Luckily, Marvel has a couple of really good writers who also have legal backgrounds.  Marc Guggenheim is one, and so I’m able to lean on these guys pretty heavily for background and to sort of back stop me to make sure that my rudimentary layman’s knowledge of how a law office works, at least has some grounding in reality.

JD:  We also spend some time in the courtroom.  What efforts do you make to accurately depict that process in that arena?

MW:  Same thing.  I talk to Gugenheim, I talk to a couple of my other lawyer friends.  It’s a fine line.  I mean, it’s fiction, it’s not a documentary, so every once in a while to make it visual or to sort of compress into 20 pages of comics what would, in fact, be an entire day’s worth of law proceedings, we have to cheat a little bit.

…

JD:  At this point, it’s public knowledge that Matt Murdock is Daredevil, at least for the most part, and the new assistant district attorney actually tells him, “Every litigator in the game is going to use your Daredevil identity against you every time you set foot in a courtroom.” You’ve said in a past interview that Murdock is doing his clients “no favors by representing them.”  Why is his identity as Daredevil such a problem in his private practice?

MW: Because every time he steps into the courtroom, a smart lawyer on the other side will invoke – especially in criminal cases, particularly criminal cases – the fact that Daredevil is an unsanctioned vigilante, and therefore, he must have some sort of antagonistic relationship with law enforcement or by nature must have some sort of antagonistic bent against authority, none of which is true, but it doesn’t matter.  . . . [W]hat I’ve been told is that, paradoxically, the courtroom itself is the only place where you don’t have to worry about slander because lawyers can say whatever they need to about each other in order to win the case, essentially.  There’s boundaries to that, but Matt is not in a position to sue an opposing attorney for slander for calling him Daredevil in court.

JD: Does Matt have a dilemma in that in his private practice he appears to be a very idealistic person who believes in due process of law, and presumably the rights of the accused, but he’s also out there at night fighting crime and presumably prompting the arrest of criminals who are going to end up in a courtroom in the future?

MW: Yeah.  That’s part of it.  The real problem for Matt gets back to the idea that a good attorney needs to be fairly invisible when it comes to the facts of the case.  The moment the attorney becomes more of the focus of the trials than the evidence or the clients, you’ve got a problem.  So then, it’s all about personality, and as we saw in issue one, it doesn’t always do the client any favors.  So Matt’s now in a position where he loves trial law.  It’s the thing he’s best at.  He’s really good at it – [but] what can he do to use that knowledge to help others?

…

If you come to Matt with a case that seems unwinnable, if you come to Matt with a case that nobody else will touch, if you come to Matt with a case that you cannot afford to have tried but he believes in you and he knows that you’re right because, again, he’s got the super senses, he can tell whether you’re telling the truth or not, then he’ll be your advocate.  He will work with you to be your own lawyer.

JD: . . . Is that the model that he’s going to adopt, where he is not [creating] the attorney/client relationship but instead assisting people in representing themselves pro se?

MW: That’s exactly it.  Exactly.  It’s a dangerous place for him to be, but frankly, it allows him to use his skills. He’s a very good coach, as it turns out, because again, he can read you like a book when you’re standing in front of him.  So,  he and his guys are not going to win every single case, but this serves two purposes for us.  One is that I kind of like the idea that it gets him back in a courtroom milieu without having to deal with the Daredevil identity.  The other, quite frankly, is that the problem with Daredevil, with Matt Murdock as a lawyer in comics, is that it’s not as interesting as Daredevil swinging across a rooftop, and you don’t want to spend a whole lot of time in a courtroom in comics because it kind of gets dull.  So this gives us a chance to do the courtroom material but not actually have to worry so much about having page after page after page of a guy in a business suit arguing in front of  a jury, which is deadly dull on the page.

JD:  Now, Foggy appears to be in a romantic relationship with the new assistant district attorney.  Is that going to present him any problems, romantic or ethical, in the future?

MW: I think the key word there is “appears,” so I’m afraid I will have to actually stall the question for a couple more issues.

JD: Fair enough.  As Daredevil, Matt has witnessed many crimes and foiled many villains. Now that his identity is out there, might he be subpoenaed to testify himself or even be sued by any of these villains for brutality?

MW: Yeah, absolutely.  It’s a dangerous place that Matt is in where he’s gone public . . . .  Like I described in the first issue, . . .  his identity is sort of out there, but following on Daredevil continuity from a few years ago, when he was originally exposed, he denied all charges.  He sued the newspaper that reported his identity and won the case.  He did everything he could to fight back.  Now, that’s past continuity, and that’s not my story.  I feel kind of squidgy about that, frankly, because as a reader, that bugged me that a superhero and a lawyer would deliberately mount a false case even though it was all for a greater good.  That he would sue the newspaper for telling the truth really bugged me.  But those are the cards I was dealt.  So instead of focusing on the history of that, what I take away from that is that the reality in Manhattan now is that about a third of the people remember that he was accused of being Daredevil and they think it’s probably true.  A third of them think this is crap because he’s a blind man and this is some sort of weird publicity hoax.  And the final third of them just don’t care anymore because it’s like news of Anna Nicole Smith at this point.  It’s old news.

JD: Now, there’s a police brutality civil rights lawsuit that plays a role in the first several issues. . . . [H]ow did you first come up with the idea of using that type of litigation to advance the narrative?

MW: I wanted something visual.  . . . [I]t couldn’t have been a criminal case per se.  People who are accused of crimes and are in prison, basically, they have a right to a lawyer.  You know this better than I do with the speech: “You have a right to an attorney.  If you cannot afford an attorney, one will be appointed to represent you. ” And Matt needs to be dealing with people who can’t get any sort of representation at all.  So, I needed to get away from criminal cases in that case.  But I needed something visual.  I needed something where . . . it was an open and shut case.  Matt has all the evidence, the poor guy is for real.  Matt knows that the guy is completely telling the truth when it comes to police brutality.  And it should have been a cake walk.  It should have been just a complete read through, easiest case Matt ever did, and the reason it backfired is because he wasn’t taking into account his own celebrity.  So, that’s why I wanted something visual – giving the guy a broken arm.  I needed something visceral . . . .  Readers have a very strong response to cases like police brutality and stuff.

JD: Are there other types of cases besides that you’re going to explore in the future?

[NOTE: SPOILERS FOR DAREDEVIL #4  BELOW]

MW: Yeah.  . . . [W]hat I like about setting this world up this way . . . is that all of these cases can lead to bigger things.  Not every case has to, but certainly, the cases we’ll be focusing on in the comic [are] the kind of things that are going to lead to bigger things.  For instance, in issue four, Matt takes the case of a kid who was fired without cause, apparently.  And he’s upset and he’s suing the company.  The problem is that New York is an “at will” state.  So, Matt says, “That’s why no one’s taking his case.  It’s a dog of a case.  He didn’t have a contract, he can’t win.”  And Foggy says, “Yeah, but I thought you may be interested because the kid is blind.”  And so now Matt’s intrigued – does it has something to do with disability?  . . .  And that ends up turning into a case where the kid inadvertently heard something that leads Matt in turn to a criminal conspiracy that in turn leads into something bigger as Daredevil.  So, that’s kind of the structure I see playing with.  You start with a small case.  And the more interesting ones turn into bigger cases that Daredevil needs to be involved with.

JD: I have to ask this. In the first issue, when Matt first enters the courthouse, he’s mobbed by newspaper reporters, including one law blog.  How did that reference come to be?

MW: That you would have to ask my editor, Stephen Wacker, because I believe I left that stuff fairly open, and I said, “Steve, let’s you and I figure out what these people are screaming.”  That’s also why one of the guys in the background is screaming, “Bababooey, bababooey!” because of Howard Stern.

JD:  . . . Have you had any reactions from lawyer readers?

MW: Yeah, a couple.  And luckily, everybody seems to understand that I’m doing my best.  I’m not a lawyer, but I play one in comics, and everybody sort of understands I’m trying to do my level best to keep it as accurate as I can, and at the same time, try and keep it as entertaining as I can, and sometimes, those are not always things that work in concert.  But so far, so good.

JD: Last question.  More generally, you tweeted very recently that “[n]ot all mainstream comics have to be written for the existing fan base.”  What’s your philosophy about that?

MW: My philosophy about it is that it makes me insane that most comics today, most super hero comics, are written specifically for the guys who’ve been reading them all their lives, which is a really inbred way of going about getting new readers.  When I sit down and write a first issue, whether it’s Daredevil or Fantastic Four or anything else I’ve done, but particularly with Daredevil – I bend over backwards to make sure that it’s a comic that you could hand to anyone if they’ve read a thousand comics or they’ve never read comics before – it doesn’t matter.  They understand who the character is, what he wants, and what’s in his way, and why we should care.  Those are the four litmus paper questions that need to be asked about every story.

John Stamos is piloting a new television legal drama.  Get this: According to an August piece over at Deadline Hollywood, it’s called “Dead Lawyers.” (We’re not joking.)  The premise: Recently deceased attorneys try to make amends. (Again, we’re not joking.)  Think “Ghost Whisperer” meets “L.A. Law,” but with living dead lawyers, forced to face the error of their evil, evil ways and right their past wrongs in order to “pass over,” presumably into some generic unexplained legal afterlife.  Apparently, this show was previously pitched and failed to generate interest among the networks (shocking.)[1] However, the previously pitched version was to air on the SyFy network (whose audience is not into lawyers – duh) and didn’t star John Stamos (who everyone loves – duh.)  This time around, Sony TV is backing the show and they’ve got Stamos.  Hello?  Who doesn’t love Uncle Jessie?  And who doesn’t love lawyers?  Especially lawyers having to pay the ultimate price – forced pro bono work with an existential twist?

“Dead Lawyers” may be a new concept, but  legal shows are old hat.  Stamos isn’t the first in a long list of stars vying for television legal roles.  Think James Spader in “Boston Legal.” Think WILLIAM SHATNER in “Boston Legal.”  Think Zack Morris in the new hit (objection, speculative) show “Franklin & Bash.”  “Ally McBeal.”  “Law and Order.”  And the list goes on.

There seem to be a whole bunch of legal dramas these days.  And why not?

1.  It’s really HARD to come up with a new concept these days.  It’s much easier to recycle an old one.  I know.  I know.  This time we’ll make the lawyers dead.

and

2.  Think of the glamour of the legal world.  You live it.  You know it.  Oh, so glamorous.  We here at Abnormal Use, have always said that document review, when done properly, can be quite romantic.

One question: Have you ever seen a lawyer in any television legal drama actually draft anything?  Anything at all?  And I don’t mean a quick screen shot of them sitting at their desk before learning about some new scandal their husband has gotten wrapped up in (a la “The Good Wife.”)  No way.  TV lawyers don’t draft anything.  So, how do they make their billable goals?

These TV lawyers stomp around court rooms, pound their fists on desks, and, my personal favorite, make arguments during witness testimony.  Judges applaud, ladies swoon, and the episode ends with a witty remark by a dashing young lawyer (or fake lawyer per “Suits“) just like me.  I mean, John Stamos.

Who could ask for anything more?

“Don’t Judge This Man Until You Hear Why I Defended The Monkey Man!,” proclaims the fabled hero, Mr. District Attorney, on the cover of Mr. District Attorney #12, published way, way back in 1949. Here’s the thing: Why is the district attorney -defending- anyone? He’s a prosecutor! If there were concerns about the guilt of the Monkey Man, shouldn’t he have simply refrained to prosecute him? And if the Monkey Man is not to be prosecuted, why on earth is he in court being put on display? Or is the district attorney suggesting that – due to unexplained reasons – he temporarily left the prosecutor’s office to defend the Monkey Man? If that’s the case, surely he knows that his own personal reasons for electing to defend the Monkey Man are not admissible? And if he has decided to represent this poor soul, why is he calling him The Monkey Man, rather than by his real name? That doesn’t seem right. Oh, well. (For our prior discussion of Mr. District Attorney comic book covers, please see here, here, here, and here.).

We typically don’t write about applications to change one’s legal name, but a guy in Missouri has legally changed his name to Led Zeppelin II.  Can you believe that? Is there anything cooler than that? We doubt it. However, it probably would have been too much to change his name to Led Zeppelin IV. That would be gilding the lily. Whatever the case, good for the new Mr. Zeppelin, and we hope this inspires someone to change his or her name to Van Halen II. (Hat Tip: Boing Boing).

If you haven’t already, check out this piece by Dionne Searcey at the Wall Street Journal Law Blog entitled “Congress Examines Alleged Fraud by Asbestos Claimants.” It’s worth a read, to be certain.

By the way, thanks to the Greenville chapter of the Public Relations Society of America for its invitation to our editor, Jim Dedman, to speak on “The Perils of Blogging.” They seemed to dig his speech, although they must not have read Steve Buckingham’s piece on Monday about his editorial management style. Alas.

We here at Abnormal Use enjoy going to concerts, which is why we were curious to learn of the recent rumors that Apple is developing some type of software to prevent iPhone users from surreptitiously filming a live music performance. Here’s what The Daily Mail reported earlier this year:

The days of filming a live concert or sporting event on your iPhone may soon be a distant memory.

Apple is developing software that will sense when a smartphone user is trying to record a live event, and then switch off the device’s camera.

Anybody holding up their iPhone will find it triggers infra-red sensors installed at the venue.

These sensors would then automatically instruct the iPhone to shut down its camera function, preventing an footage from being recorded.

Only the iPhone’s camera would be temporarily disabled; other features, such as texting and making calls, would still work.

It may be too early to speculate, as the only evidence is a patent application, one which we here at Abnormal Use have not seen.

But that’s not going to stop us from speculating.  That’s what we do best. Sometimes. Give us a break, we’re a blog. Let’s assume the report is accurate and analyze the issue.

There are some obvious free speech issues if there is a kill switch for a video instrument, but we’ll leave those issues for a con law blog. We suppose that if the venue controls the sensors then they could be disabled for bands that permit video recording of their performances.  However, generally, we’re not sure how we feel about a third party – a rock club – enabling some device which thwarts certain functions on our phones.  But, if the venue elects to enable the sensors at all times, then they may be depriving the owner of a phone from recording the performance of a band that has no objections to such recording.

However, this got us thinking.  If true, the rumor suggests that Apple is being responsive to pressure from record companies who have identified a problem of sorts:  surreptitious and possibly illegal recording of concerts. That irks some artists, too (although others are happy to have their live performances available on the Internet). Might this all set some type of precedent, though?

One wonders how long it will take the Plaintiffs’ bar, inspired by this news, to suggest novel modifications that Apple (or any smartphone manufacturer, really) could have or should have offered.  Often in the news are automobile accidents caused by texting drivers.  Clearly, such an accident is likely the result of that driver’s own negligence – and perhaps even negligence per se in light of recent ordinances and statutes that have been adopted in recent years.  However, if that driver is catastrophically injured, will we soon see plaintiffs’ lawyers suing cell phone manufacturers on the theory that the smart phones, using their own GPS technology or other functions, could have or should have detected that the vehicle was traveling at a certain number of miles per hour and thus the texting function should have been disabled?  The GPS function on the phone can tell a user where they are, where they are going, and they even track in real time the movement of the phone. If a user utilizes the iPhone’s Maps program and clicks on the GPS button, a blue circle appears on the map representing the location of the phone, and if the phone is moving at 60 miles per hour because it is in a moving vehicle, the blue circle moves in real time on the map to correspond with the vehicle’s movements. In sum, the phone recognizes that it is traveling at a high rate of speed and might be configured to disable certain functions under the circumstances. Or perhaps the cars themselves could have been enabled with sensors that thwart texting when the vehicle is in motion? (Obviously, such functions might cause issues with passengers who elect to text while the vehicle is in motion.).

But you get the idea. Sure, it sounds silly, but how many times have we been surprised by the craziness of certain plaintiffs’ theories in recent years?  It’s only a matter of time.  After all, there are devices already in existence which will prohibit a person who is intoxicated from using their car. (Those too would have seemed nutty just a few decades ago). Why not something along these lines?

Maybe, maybe not. It’s not like we’re futurists or anything.