After last week’s more wholesome legal themed comic book cover, today we return to something a bit more hard-boiled: Justice #6, published way, way back in 1948. Note the actions of the crestfallen mother as she hears the judge sentence her son to the electric chair. The defendant’s sister, however, has little sympathy. A cynical news reporter asks “When will these craven criminals ever learn that at the end of the trail of crime nothing is waiting but heartbreak – and tears!” (Why that newshound is lurking near the judge’s bench rather than the spectator’s gallery is unknown). Curiously, there do not appear to be any actual lawyers in this courtroom, or at least none we can see. One thing is for certain: there is a whole lot dialogue on this cover.

As promised, Steve McConnell of the Drug and Device Law blog has posted his magnus opus on Star Wars. (Don’t expect too much about pharmaceutical litigation in that post.). We encourage you to read it. Of note, Steve properly reserves some disdain for the recent prequels, as any reasonable person should.

Speaking of which, in last week’s edition of “Friday Links,” we directed you to our 2011 April Fool’s Day post, “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds,” suggesting that it was “the one post this site [had] dedicated to that series of films.”  But guess what? That’s not entirely true. Nerds that we are, we’ve referenced Star Wars before! We searched our archive and discovered this June 2010 post in which we quoted a number of courts who referenced the Star Wars trilogy. You know you want to know which judges referenced the trilogy.

Friend of the blog Jay Hornack a/k/a Panic Street Lawyer has an interesting blog post on U2’s recent Pittsburgh concert and the 14th Amendment. Somehow, he manages to connect those seemingly unrelated things together with his mighty prose. Check it out. We have not yet had the opportunity to write about U2, but earlier this year, we did do a pretty thorough post listing songs about lawyers and judges.

The State offers this account of yesterday’s memorial service for U.S. District Court Judge Matthew J. Perry, Jr., who passed away last week at 89.

This week, we welcome two brand new bloggers to Abnormal Use! Starting this week, be on the lookout for posts from our two new associate contributors, Steve Buckingham and Childs Cantey Thrahser. Steve (whose first post ran earlier this week) serves on our Business and Commercial Law Team in our Greenville office, while Childs, also on our B&C team, works out of our brand new Columbia office. We’d also like to take this opportunity to thank retiring blogger Laura Simons, an associate in our Greenville office, for her 18 months of service on the blog. She’s definitely earned a break after being with us since our initial founding in January of 2010, and we wish her a happy retirement from this fateful enterprise.

South Carolina Lawyers Weekly reports on Mills Gallivan, our boss, being appointed to the South Carolina Bar Dispute Resolution Section. Note: You can now follow Mills on Twitter at @MillsGallivan.

In the legal blogging world, there is much speculation about the manner in which to measure one’s success.  Our friends over at the Drug and Device Law blog have discussed this in the past, and each of us, as law bloggers, confronts this issue daily.  Do legal blogs lead to new legal business? If so, is there a way to chart the path from the initial blog post to a new client’s engagement letter? It’s an interesting question. There may never be a day in which a new client presents itself to one’s firm identifying a blog entry as the sole source of the retention.  However, amongst bloggers, the general consensus seems to be that the presence of a blog will spotlight both the firm and the blog’s authors, and accordingly, raise their profile, especially if they follow a strict blog launch checklist on the daily to keep content fresh.  That heightened level of attention will, very likely, lead to additional opportunities and perhaps new business.

For example, once a blog author becomes a familiar voice on a given topic, he or she may be invited to speak at events and conventions.  These opportunities would likely not have come but for the presence of the blog and subsequent raising of the profile of its authors.  Further, we here at Abnormal Use have had the opportunity to meet and network with several other lawyer bloggers that we never would have previously met had we not begun this enterprise here.  For example, in early June, while on an unrelated business trip in Philadelphia, we had the opportunity to meet the three authors of the Drug and Device Law blog, whom we have known in the digital world for 18 months but had never actually met in person.  Further, more recently, during a CLE conference in New Orleans, we were able to meet Jeff Richardson of the iPhone J.D. blog and Ernest Svenson of the Ernie the Attorney law blog.  At each of these informal meetings, we discussed this issue – how law blogs might lead to legal business.  However, the very fact that we were meeting and discussing that issue underscores the networking value of legal blogging, as we were all doing so solely because of our own blogging efforts. How’s that for networking?

There’s more to it than that, of course. Once a legal blog establishes a history and some credibility, who knows what will happen? We were very pleasantly surprised to learn recently that our posts were quoted both by The New York Times and National Public Radio. (See here and here for more information on those two twists of fate.). We’ve been asked to speak at events and present at CLE seminars as a result of our prose on this site. It’s difficult to calculate the value of such things, but it’s worth it.

In the end, Ernie probably said it best when he noted that we, as lawyers, speak in terms of causation, but we may never be able to identify the “but for cause” of every new client.  Further, we may never know if the legal blog is the reason for the business, or if the legal blog led to a secondary opportunity which itself led to new contacts which in turn led to new business.  It’s difficult to trace the chain of causation, but it seems clear that blogging is an excellent tool for networking among other attorneys and spot lighting one’s self. If you’ve got something to say, and you’ve got readers ready to listen, what can be wrong with that?

Fans of The Hangover undoubtedly remember the scene in which the actors are tasered by a group of children at the instruction of two police officers.  We here at Abnormal Use must admit that we found it at amusing.  Who wouldn’t find it funny watching 5000 volts of pulsed current flowing through Bradley Cooper and Zach Galifianakis?  However, after the recent $10 million jury verdict against it, TASER International might not consider this scene a laughing matter.

Very recently, in Turner v. Taser International, Inc., Case No. 3:10-CV-00125 (W.D.N.C.), a federal jury in the Western District of North Carolina ordered TASER to pay the estate of a 17-year old North Carolina resident $10 million.  According to reports, in 2008, the boy went into cardiac arrest and died inside a grocery store after being shocked in the chest for 37 seconds by a Charlotte-Mecklenberg police officer.   The boy was tased at the store by police following a verbal dispute with his boss.  The City of Charlotte settled with the boy’s estate for $625,000 in 2009 without admitting any wrongdoing.  TASER has moved for judgment in its favor notwithstanding the verdict.

Counsel for the plaintiffs issued a press release regarding the verdict, which said the jury found TASER negligently failed to warn users that discharging the taser into the chest of a person near his heart poses a substantial risk of cardiac arrest.  The press release further indicates that the medical examiner “found no drugs” in the decedent’s system, though Heraldonline.com reports that TASER has said a drug screen was not performed either at the autopsy or at any time before the lab destroyed the teenager’s blood evidence.  In any event, presiding District Judge Conrad reportedly did not allow the defense to offer evidence that three bags of marijuana were found in the decedent plaintiff’s sock during the incident and did not instruct the jury on contributory negligence in spite of defense counsel’s argument that the plaintiff’s behavior was negligent and “necessitated the use of force by police.”  Other outlets report that the teenager had committed offenses including theft, assault of other employees, resisting arrest, and assault on law enforcement.

TASER, the leading manufacturer of conducted energy devices (CEDs), is no stranger to litigation.  It has won judgment or been dismissed from more than 125 product liability cases.  The Turner verdict is only the company’s second adverse jury verdict (the first being a $7 million verdict in 2008 which was later reduced to $200,000).  With the limited information about the case in the media, we can only speculate what distinguished this case from the previous 128.  In TASER’s opinion, “compassion may have overwhelmed the scientific evidence presented in this case.”  TASER may be right, but certainly compassion was not the only factor at play.

It stands to reason that being shocked with large amounts of electricity may not be synonymous with a trip to the spa.  According to TASER’s website, however, the 5000 volts of electricity exerted by its product have a lower risk of danger than a 110 volt wall outlet.  TASER bases this conclusion on a taser’s pulsated current versus the continuous current found in a wall outlet.  Even at a pulsated rate, 37 seconds still seems like a long time to be subjected to 5000 volts of electricity – especially in the chest area.

A study recently released by the United States Department of Justice indicated that “there is currently no medical evidence that CEDs pose a significant health risk for induced cardiac dysrhythmia when deployed reasonably.” (emphasis added)  Interestingly enough, the study fails to define “reasonably.”  Regardless of how it is interpreted, the risk of injury is present. The question is what is TASER’s duty to warn?

We do not know what warnings TASER provided police officers prior to this incident.  (According to the DOJ study, TASER now recommends changing the target zone to below the chest).  Should officers have known the dangers regardless of any inadequate warning from the manufacturer?  Certainly, the officers from The Hangover didn’t get the memo.

Want more on this story?  Try this interesting piece from the South Carolina Criminal Defense Blog.

We here at Abnormal Use love a good legend: The Legend of Zelda; Legends of the Hidden Temple; City Slickers II: The Legend of Curly’s Gold; and for the ladies out there, Legends of the Fall. We especially love a good urban legend, such as the legend of the exploding toilet, which we recently came across in the news.

According to reports, a member of the Australian Air Force was recently injured critically during training when a port-a-potty he was using exploded. Ordinarily, the thought of an exploding portable loo would be comedic gold, as seen here. But not in this case. The airman was rushed to a local hospital where he received emergency treatment for third-degree burns to his head, face, arms, chest, and airways. Our thoughts and prayers go out to the airman, and we pray for his swift and healthy recovery.

But since this is a products liability blawg, it is only fitting and proper that we take a closer look at the Case of the Thunder from Down Under. The reports we’ve read relay an interesting, if dubious, chain of events that occurred immediately prior to the explosion. It has been suggested that the port-a-potty was not properly ventilated, and that some chemical – perhaps methane produced during the process of excretion – had been allowed to build up in the toilet to combustible levels. The airman entered the loo, lit up a cigarette, and the rest is history.

At first, this connection of causes and consequences seems plausible. Methane is a byproduct of natural bodily functions, and it is flammable. Case closed, right? The miracle of the scientific method has solved the mystery. And if we were to apply the same rigorous scientific methodology to other simple observations, we would come to the conclusion that Santa Claus exists because there is a North Pole, that the universe revolves around the Earth like the sun, and that thanks to Con-Air, the Rock, and Gone in 60 Seconds, Nicolas Cage is the greatest actor of our time. Scientifically, we know each of these to be false.

The same is true about the exploding toilet. Methane is flammable, but only under very limited circumstances. If this weren’t true, the tip of Florida would burn like a wildfire of Biblical proportions every time lightning strikes the Everglades. There’s also the small factual matter of how methane would be trapped at just the right quantity inside a port-a-potty. Even if every aspect of the toilet’s ventilation were sealed off perfectly, the user would still have to open the door.

The fine folks over at Snopes.com have previously debunked the legend of methane causing toilets to explode. The guys at “MythBusters” have done the same thing. Yet the legend inevitably limps on.

To be clear, we at Abnormal Use believe that toilets can and do explode. Not because of poor ventilation. But instead, because of: (1) some combustible substance other than methane being introduced into the restroom environment (intentionally or not); or (2) explosives being planted in the loo. Either way, we hope the injured airman finds out who’s responsible and gives them the business, Aussie style.

We’ve just received an email notice from the U.S. District Court for the District of South Carolina that its offices will be closed on Thursday, August 4 in honor of Judge Matthew Perry, who passed away this past weekend.  The email from the District Court reads as follows:

The United States District Court for the District of South Carolina shall be closed on Thursday, August 4, 2011 to honor Matthew J. Perry, Jr. for his service and contributions to the federal judiciary.

A copy of Chief Judge Norton’s order is attached.  If you have difficulty viewing this order in your email application, you may download a copy at:

http://www.scd.uscourts.gov/DOCS/Order_11-mc-2000.pdf

We’ll keep you posted of any additional developments.

Though we hadn’t previously known “greenwashing” was even a word, much less something around which a class-action lawsuit could be centered, we now know that at least in California, and later Wisconsin, invocation of that term may entitle the accuser to an undisclosed sum of settlement money.  We previously reported here that a California resident had filed suit in federal court on behalf of purchasers of various household products manufactured by SC Johnson, alleging that the company was deceptively marketing its products as “green,” or environmentally friendly, with its use of the trademarked “Greenlist” labeling sticker on its products.  Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.).  Another suit similarly was filed in Wisconsin.

SC Johnson recently issued a detailed press release in which its CEO announced that the company will stop using its Greenlist logo on Windex products and disclosed that the company has reached “an undisclosed settlement” agreement as to the two lawsuits filed against it.  In its candid statement, the company set forth its reasons for settlement:

“We decided to settle for two reasons. First, while we believed we had a strong legal case, in retrospect we could have been more transparent about what the logo signified,” said SC Johnson Chairman and CEO Fisk Johnson. “Second, and very importantly, Greenlist™ is such a fundamentally sound and excellent process we use to green our products, that we didn’t want consumers to be confused about it due to a logo on one product.”

The statement goes on to wisely say – in words that must be echoed by many slapped with product liability suits – that “[w]hile companies always try to ensure labels are clear and understandable, different interpretations can arise.”  In any event, it looks at though SC Johnson settled these suits quickly, and likely took from it a valuable lesson in marketing practices.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. were saddened today to learn of the passing of U.S. District Judge Matthew J. Perry, Jr. Admitted to the South Carolina Bar in 1951, he was appointed to serve as a U.S. District Judge for the District of South Carolina by President Carter in 1979.  Following that appointment, Judge Perry became the first African American federal judge in South Carolina. Sixteen years later, he would assume senior status. He was a true gentleman and a delightful person. Our thoughts and prayers go out to his family. To learn more about Judge Perry’s long and varied career, see here and here.

We’ve decided to go wholesome with this week’s legal themed comic book cover simply because one of our fellow lawyers here at our firm complained that last week’s comic book cover was not entirely work appropriate. We’re crestfallen. We’re agog. The last thing we wanted to do was incur the animadversions of one of our colleagues (one, in fact, whose office is right next door to this site’s editor’s office). Alas. So, today, dear readers, you get Archie’s Girls Betty and Veronica #92, published way, way back in the safe days of 1963, just before the counterculture rose and began to shock us all into submission.  We particularly like how Archie himself is tagged as Exhibit C which, we suppose, means that he will be taken back to the jury room for deliberations.  Betty, pro se, appears to be delivering her opening statement, which makes it all the more unusual for Veronica to be in the witness stand. Oh, well. It’s wholesome, right?

But that’s not all, dear readers. Another lawyer in our office gave us grief this week for saying “We here at Abnormal Use . . . .” as a preface to certain posts. We explained to him that it was our hip way of communicating our opinions, but he wasn’t buying that nonsense. “They know you’re from Abnormal Use,” he exclaimed. “They’re already on the blog.” Well, in the end, we just like saying that, so don’t expect us to abandon that statement, however superfluous, anytime soon. It’s our trademark. Or something.

Rumor has it that Steve McConnell of the Drug and Device Law Blog has written a Star Wars themed post set to run sometime next week. In the mean time, please revisit the one post this site dedicated to that series of films. Make certain you pay attention to the date it was originally published.

Law professor Mark Osler (who we once interviewed for this site here) has an interesting, though brief, post about bad job interview questions at his blog, Osler’s Razor. Our favorite: “I have stolen a pie. Have you ever stolen a pie? How about something else?” We’ve never heard that one before.

Chad Bray at The Wall Street Journal Law Blog reports on Marvel Entertainment, L.L.C.’s victory in federal court in a suit brought by the heirs of famed comic creator Jack Kirby.  Writes Bray: “On Thursday, a federal judge found that Kirby’s creation, along with Stan ‘The Man’ Lee, of characters like the Incredible Hulk, the X-Men and the Fantastic Four was “work-for-hire” under the Copyright Act of 1909 and Marvel owned the rights to those characters.” Interesting news.

Bloomberg.com recently reported on a study which found that bacteria in raw poultry may be a source of superbugs in people.  Our first thought upon reading this story was, “What the heck is a superbug?” Well, we did a bit of cybersleuthing and learned that a superbug is a bacteria that has multiple antibiotic resistance genes. Or something like that. We’re not quite sure we get it. But, anyway, the theory goes: Superbugs have been spawned due to the overuse of antibiotics in animals. Yikes.

According to the study, found in the Center for Disease Control’s Emerging Infectious Diseases journal, a bacteria resistant to third-generation cephalosporins (i.e. medications to treat bacterial meningitis, pneumonia, and E. coli) was found on 80 percent of raw poultry purchased from grocery stores in the southern Netherlands.  By comparison, the bacteria was only found in 12 percent of the pork, beef and ground meat sampled.  Further, the study concluded that people infected with the bacteria where 2.5 times more likely to die within a month of infection.

If the image above is any indication, then the human race better take cover. (To be honest, we don’t know if that artistic rendering is of an actual superbug, but it’s scary, and it looks like what we think a superbug should look like). The study was silent on whether the superbugs possessed carnivorous teeth.

Before we abandon our local supermarkets and vow to buy only organic poultry, we must disclose that the Netherlands is one of Europe’s largest users of antibiotics in farm animals.  The animals are exposed to more antibiotics; therefore, they have a higher likelihood of breeding drug-resistant bacteria.  However, the use of antibiotics among residents of the Netherlands is also among the lowest in Europe. Whatever the case, we fear superbugs. Immensely.

You might recall that back in March, we interviewed the writers and producer of the 1991 film, Class Action, which starred Gene Hackman and Mary Elizabeth Mastrantonio as an estranged father and daughter, both lawyers, who find themselves on opposite sides of the same products liability case. We always intended to revisit and review the film, but as sometimes happens, time slipped away from us, and we never finished our draft of the review.  Tardy, but unfazed, we here at Abnormal Use resolved to use the recent Fourth of July holiday weekend to finalize the review, and so we have finally done so.

Primarily written by Carolyn Shelby and Christopher Ames, and directed by Michael Apted, the film is actually pretty good, and holds up well as a legal drama, even when viewed by weary and cynical attorneys 20 years after its original release. Shelby and Ames apparently came on board after the initial draft by attorney Samantha Shad had been developed. Their script received much praise from Roger Ebert in his 1991 review:

The screenplay by Carolyn Shelby, Christopher Ames, and Samantha Shad contains dialogue scenes so well-heard and written it’s hard to believe this is a Hollywood movie, with Hollywood’s tendency to have characters underline every emotion so that the audience won’t have to listen so carefully. There is a scene, for example, where father and daughter are preparing dinner together, and their civility gradually collapses into anger and tearful recrimination. And other scenes, deliberately of few words, in which lawyers try to say things without saying them – to imply what must be done, without being trapped into actually issuing unethical orders.

The film begins with a intercut sequence comparing the styles of Hackman’s fiery Plaintiff’s attorney Jedediah Tucker Ward and his estranged and far more conservative defense lawyer daughter, Maggie, played by Mastrantonio. While Maggie is a by-the-book defense lawyer who opines that certain principles are “deeply embedded in the black letter law of the state” and that “appeals to the contrary based on emotion have no place in a court of law,” Jed simultaneously argues in an adjacent courtroom that those assembled are “not in a court of law, but ‘rabbit hole’ leading to ‘Wonderland’ and ‘Mad Hatter’s tea party’.” Maggie, an associate who desperately wants litigation experience in order to make partner, is also sleeping with Michael, the junior partner liaison to an automotive company client. We ultimately learn this is not a very good idea. For his part, Jed is the type of plaintiff’s lawyer we all know who complains of “fascist Reagan judges” who throw cases out if they target big corporations. The two main characters are also huge law nerds. Jed and Maggie, during brief periods of personal détente, actually quiz each other about the underlying facts of old cases, including Weems v. United States, 217 U.S. 349 (1910), a cruel and unusual punishment case. Nevertheless, their long standing personal conflict escalates when they find themselves on opposite sides of the bar in a products liability case involving an allegedly defective automobile (although the film is careful to include a scene confirming that all necessary waivers have been signed – although we wonder if that conflict could be waived). The relationship is further exasperated when Jed’s wife and Maggie’s mother (JoAnna Merlin) dies of an aneurysm in the courthouse immediately following a contentious motion to compel hearing.

The products lawsuit proceeds as many depicted on film do, with the Plaintiff (Robert David Hall) – who viewers will recognize now as the medical examiner on television’s “CSI: Crime Scene Investigation” – painted as a sympathetic victim of obvious corporate gross negligence. The automotive company, of course, is the villain of the film; its corporate execs have disposed of an unfavorable report indicating circuitry problems in the vehicle at the behest of the aforementioned junior partner. Further, the fictional auto company internally concluded that it would be cheaper to defend 200 subsequent lawsuits than to recall the model of vehicle in question (not unlike the famous Ford Pinto case). We bet you can guess who wins the suit.

In 2011, the narrative remains interesting, even to legal viewers, although there is some nitpicking required.  Spoiler Alert!

At a motion to compel hearing at which Jed is seeking the addresses of current and former employees of the automotive company, Maggie properly responds and notes that the request may be unduly burdensome and require them to investigate the whereabouts of many, many people. However, Jed responds by admitting he called the automotive company’s pension department in a feigned attempt to locate an old friend.  He claims the department provided him with a current address, which the judge uses as a justification to grant Jed’s motion to compel. No objection to improper contact is made.

Near the conclusion of the trial, Jed calls Michael, the aforementioned junior partner who represents the auto company, to the stand. Although much ado is made of this move, no one mentions the attorney-client privilege and the fact that he cannot be compelled to discuss his communications with his client. Further, Maggie has a chance to examine the witness, and she does so! She elicits testimony that she knows to be false (in what is later revealed as her attempt to do justice at the expense of her own client because of her misgivings about the junior partner’s destruction of relevant evidence). However, during the examination of her colleague, she does nothing in that immediate moment to alert the court that Michael has given false testimony about the existence of the unfavorable report that he destroyed. Oh, my, the ethical dilemmas pile up quickly in this film.

The senior partner at Maggie’s Big Law firm, Quinn (Donald Moffat), notes that he will attend the deposition of the plaintiff and expresses some concern about whether Maggie has the fortitude to “eliminate” him as an effective witness. At the deposition, Maggie confronts the plaintiff with a number of facts, including evidence that he was treated by a psychologist for “car phobia,” his history of past accidents and tickets for driving to slow, and photographs of the accident scene, all of which seemed perfectly appropriate and relevant to the line of questioning in a products liability lawsuit. However, Jed and his law partner, Nick Holbrook (Laurence Fishburne, back in the days when he was credited as Larry Fishburne), strenuously object to the line of questioning and prematurely terminate the deposition upon the presentation of the accident photographs. Maggie copes with the aftermath of this deposition by drinking alone at a bar and comparing herself to a contract killer. However, the types of questions being asked by Maggie seem like standard, almost boiler plate, queries for a plaintiff’s deposition (particularly a class rep), though they are treated as if they are affront to justice and human dignity.

The large corporate film depicted in the film is portrayed as completely and totally unethical. The aforementioned junior partner, Michael, advises the corporate client that a report that he has not read is acceptable. When this report ultimately comes to light during the litigation, he makes efforts to destroy or bury the report when he learns it is actually unfavorable. When Maggie objects to such misconduct, she takes it to the attention of the senior partner Quinn, who initially appears to understand her dilemma. Quinn suggests that the report be buried in the voluminous set of documents delivered to Jed in dozens and dozens of banker’s boxes. However, Quinn ultimately condones Michael’s purposeful error in misfiling the report amongst those documents to make it even more difficult to find than a needle in the haystack. Maggie later learns that the report was not produced at all – even in the voluminous document dump. At the end of the film, we learn she uses this information to advise her father of a particularly relevant witness who can confirm the existence of the report. However, her actions to correct the discovery abuse and unethical conduct of her fellow members of the firm is done on the sly and not with the advice and counsel of an outside lawyer, the state bar, or even the judge. In light of that, although Maggie was acting to correct misconduct, she may have done so in a fashion that subjected her to disciplinary review as well, although that is not explored in the film.

Some fun other notes: At the time of the release of this film in 1991, Mastrantonio was just about to appear in Robin Hood: Prince of Thieves, while Hackman was on the verge of appearing in that year’s Unforgiven (a role for which he would win the Oscar). As revealed in our interview with Cort, Shelby, and Ames, Julia Roberts was nearly cast as Maggie over Mastrantonio, which would have made for a very, very different film.