Recently, Patrick G. Lee of The Wall Street Journal remarked upon an increasing trend: law schools dedicating their curricular efforts to practical legal education. The tone of the article suggested that this was a new development and that law schools were now in the process of adapting their curriculum to add more practical components for the benefit of their graduates.  Lee writes:

Looking to attract employers’ attention, some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills.

…

“Law firms are saying, ‘You’re sending us people who are not in a position to do anything useful for clients.’ This is a first effort to try and fix that,” says Larry Kramer, the law dean at Stanford.

The moves come amid a prolonged downturn in the legal job market. Only about one-quarter of last year’s graduating law-school classes—down from 33% in 2009—snagged positions with big law firms, according to the National Association for Law Placement, an organization that collects employment data.

In past years, a law firm could bill clients for a new lawyer’s work, even if that time were spent getting the novice up to speed. During the recession, corporate clients started limiting the number of hours a firm could charge and made it a policy not to pay for first-year associates, explains Don Liu, general counsel for Xerox Corp.

However, as we have previously discussed on this site, this is a familiar issue and one which other institutions addressed long ago. Of course, under the traditional model, the burden of instilling legal skills now falls upon the licensing agencies – which sometimes require new graduates to complete practical CLEs before or shortly after being sworn in to the bar – or law firms themselves, which much dedicate their own resources to teach new associates the most basic legal practical skills. But why is this? Is there a reason not to require a law student to enroll in a course on discovery? Even if that student does not plan to litigate, isn’t a basic understanding of discovery – including the drafting of both discovery itself and discovery responses – appropriate? But it’s not just about discovery. Can it be that students are graduating from law school without an understanding of the practical mechanics of how to file a complaint at the courthouse, or use e-filing? What about trial advocacy, or even arbitration and mediation practice? Are these forlorn topics in today’s curriculum?

As we wrote last November:

[L]aw school administrators should consider more dramatic changes in the law school paradigm. The second and third years can be transformed into true opportunities to learn practical legal skills (as well as everyday ethical issues and the business of law). State bars should be confident that students graduating from accredited institutions have been properly trained both in the nature of substantive law and legal thinking but also practical skills that will be employed on a daily basis as lawyers. Last but not least, law students are consumers of legal education. If we expect them to spend three years of their lives and hundreds of thousands of dollars to enter our profession, there should be no gap to bridge upon graduation.

Another question: Why is it that a decision by law schools to engage in practical training is still news worthy? That simply shouldn’t be the case. In this day and age, when graduates are entering into an uncertain job market and arriving to the profession with significant and sometimes crippling debt, they should at least be equipped with practical legal skills. (Being able to cite the facts of a bunch of King’s Bench cases won’t pay the bills). This is not a difficult concept. Law schools require few courses during students’ second and third years; thus, it would be relatively easy to add required practical courses. While that may interfere with students’ pursuits of golf outings or interesting electives, practical legal training is something that law students need.

Earlier this month, on July 12, the Third Circuit upheld a jury’s verdict in favor of a manufacturer of bicycle helmets, and in doing so, affirmed the lower court’s application of a relatively new interpretation of product liability law.  Covell v. Bell Sports, Inc., No. 10–3860, —F.3d—, 2011 WL 2690396 (3d Cir. July 12,  2011). The case was filed by the parents of a 36-year-old schoolteacher who sustained serious brain injuries when he was hit by a car while bicycling to work in 2007.  The parents, in their capacity as guardians, filed suit against the manufacturer of their son’s helmet, alleging that it was defectively designed and lacked adequate warnings.  At trial, over the plaintiffs’ “strident objections,” the court permitted the helmet manufacturer to introduce expert testimony regarding the Consumer Product Safety Commission’s “Safety Standard for Bicycle Helmets.” In turn, the plaintiffs responded with their own expert regarding the CPSC safety standard.  Both experts testified at trial that the CPSC standard forms the “starting point” for any bicycle helmet design, and both agreed that the helmet at issue satisfied CPSC standards in all respects.  At the conclusion of trial, the court instructed the jury that in determining whether the helmet was defective, it could consider evidence of standards in the industry, including the CPSC standards.

The Third Circuit recognized the “core conflict” that exists within provisions of the “strict liability regime” of the Restatement (Second) of Torts: that courts are to ignore evidence that the seller “exercised all possible care in the preparation and sale of his product,” yet imposes liability only for products that are “unreasonably dangerous.”  It is, of course, often impossible for a jury to determine whether a product is “unreasonably dangerous” without referencing evidence that the seller did or did not exercise “care in the preparation” of its product. Ultimately, the court held that federal courts applying Pennsylvania law are to use the Restatement (Third) of Torts to guide both their decisions regarding the admittance of evidence and in their usage of jury instructions.  In this regard, it allows for a more negligence-friendly products liability regime than previously recognized in Pennsylvania, where juries may properly consider industry standards and government regulations.  This is certainly a defense-friendly analysis and decision.  Short of doing away with strict liability laws in their entirety, incorporating more negligence-type concepts into the analysis of manufacturer liability is a positive approach.

Emily Pincow of the Product Liability Monitor blog has additional thoughts on the case here.

We here at Abnormal Use have previously mentioned that She-Hulk, the Marvel Comics character, is a lawyer and litigator, and our friends at The Law & The Multiverse recently analyzed the issue of She-Hulk’s disbarment. With that prompting, we revisit the super heroine. Depicted above is the cover of She-Hulk #7, published not so long ago in 2006 and featuring She-Hulk sitting on a bench which happens to feature an advertisement for her alter ego Jennifer Walters’ personal injury practice. We wonder if it complies with the lawyer advertising rules of the Marvel Universe. (Interestingly, although the advertisement asks potential slip and fall Plaintiffs to call her for representation, there does not appear to be a phone number on the ad.).

Dave Lake of Seattle Weekly’s Reverb music blog offers a list of interest: “The 11 Most Notorious Rock & Roll Crimes.” Our question: Shouldn’t Bob Dylan’s latest string of live performances be included on any list of musical crimes? Or even his albums from the 1980s? Those things Mr. Lake does not address.

Well, it’s not a hot coffee lawsuit (and we bet you’re tired of hearing about those on this site!), but McDonald’s has now been sued in federal court in California over its advertising, which the Plaintiffs in that case contend is designed to “lure” children into the fast food company’s restaurants. How specifically, pray tell? The Happy Meal. That’s right. There is a class action lawsuit pending in federal court over Happy Meals. Wouldn’t it be fantastic if McDonald’s presented Grimace as its 30(b)(6) witness?  (More here from Reuters).

There’s a new blog dedicated to lawyers using iPads. It’s called IPAD4LAWYERS, and it’s run by Tom Mighell. We’ll have to add that to our list of daily legal technology reading which, of course, starts with the iPhone J.D. blog. (Hat tip: Cocky Law Blog).

Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).

Every area of law has its particular discovery challenges, including products liability.  Quiz: How many times have you been out at the scene of an inspection, face to face with a destroyed ________ (fill in blank here: vehicle, boat, grill, house, et cetera), and asked the question of your client/engineer, “Well, whaddya think?  Is it ours?”  The question gets even trickier with component manufacturers.  “Well, did we sell that one inch piece of ______ in the destroyed ______?”

What a maddening area of practice, where you can go for months defending a case (or, for that matter, suing a manufacturer) and not even be certain the correct parties were involved.  In fact, you might actually resolve a case or two without ever having a definitive answer to that question. Ah, the perils of products cases!

That brings us to the relatively recent case of Fisher v. APP Pharmaceuticals, LLC, No. 08–CV–11047, — F. Supp. 2d —, 2011 WL 812277 (S.D.N.Y. March 1, 2011).  The case centered around the use of the drug heparin by the plaintiff’s decedent following elective heart surgery.  The plaintiff alleged that, rather than preventing blood clots as the drug was designed, the heparin actually caused the decedent’s blood to clot, which resulted in the decedent’s death of a heart attack. The personal representative of the decedent’s estate sued Hospira and John Doe Corporations asserting theories of strict liability/failure to warn, design defect, negligence, breach of warranty, negligent misrepresentation, fraud, and wrongful death.  Through two amendments to the original complaint, Plaintiff added APP Pharmaceuticals and Baxter Healthcare Corporation as defendants.

Motion to Dismiss Based on Lack of Product/Manufacturer Identification

Both APP Pharmaceuticals and Baxter moved to dismiss.  APP argued that the complaint failed to sufficiently identify the manufacturer of the heparin (the classic “it wasn’t me” defense, challenging Plaintiff to prove identity).  Baxter asserted that the complaint did not allege that Baxter’s product injured the decedent.

The Court cited the applicable pleading standards as follows:

Federal Rule of Civil Procedure 8(a)(2) requires a claim for relief to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While the Rule 8(a)(2) pleading standard does not require “detailed factual allegations,” it does require more than “labels and conclusions” or a “formulaic recitation of the elements of a claim.” In a New York products liability action, a plaintiff must prove (1) that the defendant’s product had a defect that rendered it unreasonably dangerous at the time it left defendant’s control and (2) that the defective product supplied by the defendant caused plaintiff’s injury.

Defendants also argued that several of the claims were time barred, based on the late addition of the Baxter and APP defendants.  Plaintiff argued, of course, that the claims related back to the original complaint.  We all remember the relation back rule:

Plaintiff argues that the [second amended complaint] relates back to the original Complaint because the John Doe Defendants named in the original Complaint served as place-holders for APP and Baxter under New York Civil Practice and Rule 203(f). Under New York law this argument is only successful if the original pleading gave notice to the newly added parties. N.Y.P.L.R. 1024 and 203(f). It is Plaintiff’s burden to establish that “(1) both claims [arise] out of the same conduct, transaction or occurrence, (2) the new defendant is united in interest with the original defendant, and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or it as well.”

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to Ernest Svenson of the Svenson Law Firm.  He’s a New Orleans attorney and author of the old school law blog, Ernie the Attorney, which began in 2002. As a longtime legal blogger, he knows quite a bit about legal technology, blogging, and social media, so we thought we would pick his brain about those topics. He was kind enough to agree to an interview.

1. You’ve been a legal blogger since 2002. What is the biggest change you’ve noticed in legal blogs since that time, and is it for the better?

The biggest change in law blogging has been the explosion in the number of law blogs and the topics covered. Definitely a wonderful development, in my view. Lawyers are powerful information processors. We can output and consume prodigious amounts of information, and we can parse information for reliability better than most other professionals. Not all, but most.

When I went to law school law reviews were a staple source of new legal analysis, and I was fortunate enough to be an editor of the law review at my school. I have a very strong appreciation for how intricate the process was to publish a law review, especially how long it took. Word processing tools were complicated and expensive, and distribution wasn’t cheap either. Now a law professor who wants to comment on a new legal development can bang something out in a few days, or even a few hours, and upload it to his or her blog where it’s instantly available to anyone with a computer and an internet connection. To me, this is an amazingly beneficial development.

2. What’s the next big thing in social media that attorneys should be aware of?

Google+ seems to be hot, but I’m not sure that it is of high value to attorneys. At least not yet. Frankly, I think that attorneys are still struggling to assimilate some of the “old things” in social media. Divorce lawyers are probably the most keenly versed in the implications of social media in litigation, especially Facebook. But social media will have implications in many spheres besides just litigation.

Still, if lawyers want something to focus on I’d say “geo-location” tools like Foursquare or Facebook Places. As more people buy and use smartphones with GPS capabilities, we’ll see more social networking platforms that leverage information about where you are. This can be good for users (if they want to find a nearby place to eat or buy gas) or bad users (if they inadvertently reveal where they are when they intended to conceal their location, or lie about it). But, whether you view geo-location as good or bad, you need to pay attention to it because it will inevitably be more prevalent.

3. These days, there are many, many social media platforms, such as Facebook, Twitter, LinkedIn, and now, Google Plus. How can attorneys maximize their use of social media without becoming overloaded or spreading themselves to thin with so many sites?

Information overload has two components: output and input. Mostly people fret about receiving too much information. I agree with Clay Shirky (the NYU professor and prominent speaker and author) that we don’t have an “information overload” problem so much as we have a “filter failure” problem. We need to find better ways of filtering inbound information. My main tools are: (1) RSS readers, (2) Twitter and (3) trusted agents (which are really just sub-filters that feed into my RSS Reader).

For information that one outputs, again, there are tools. I have three blogs, or four, if you count my law firm website, and just as many Twitter accounts and Facebook pages. If I had to login to each of those places and post stuff I’d never get anything else done. I use a service called SocialOomph that lets me dump things into buckets that then get parsed out on a regular schedule. Discovering this tool was a boon to my workflow and has eased my stress at the same time that it gives the impression of increasing my output.

4. What do you think is the most overlooked social media utility for attorneys? Why is it overlooked?

Twitter. Before Twitter appeared I spent a lot more time with my RSS Reader, constantly tweaking the information stream so that I could get a strong mix of opinions and viewpoints as well as breaking news. Twitter now supplies that to me with virtually no tweaking, and I can gather that same information as easily on my smartphone as I can on a computer.

Lawyers, and others, tend to dismiss Twitter by saying “I have nothing to say on Twitter.” Fine, but many people that you would find interesting do, and you are missing out on an efficient way to tap into those opinions by ignoring Twitter. Sure, you have to curate your Twitter feed to capture useful views and not shallow ones. But that’s not as hard as most people think, and so they stick to gathering news from traditional sources which have filters to be sure, but filters that are preset for mass markets.

5. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this social media among attorneys?

State bars are not as behind on social media as many lawyers think. The Louisiana Bar, my state bar, has a Twitter feed and a Facebook page. Other local bar associations have adopted social media as a cheap and yet effective way of communicating with its members. I predict that social media will be embraced by all bar associations eventually. Proprietary communication methods seem useful, until you realize that getting people to adopt a new communication platform is harder than herding cats. Facebook and Twitter may have funny names, but if more than a half a billion people know how to use those tools it makes sense to use them to talk to your constituents.

6. How can smaller firms and solo practitioners utilize social media and legal technology to simulate the advantages of a larger law practice?

Small firms have advantages now that we are only just beginning to become aware of. Larger is not better unless being larger helps tackle and otherwise insurmountable problem. Small firms can market better now because of social media and the internet, and they can collaborate with other practitioners anywhere in the world. That which is digital moves more quickly to more place and can be analyzed more precisely.

A small firm that wants to become paperless can do so much more quickly than a large firm. And at a much lower cost. Large firms have bloated overhead and are more easily trapped into longer term contracts. All of those large costs have to be passed on to clients. Small firms can work smarter and take advantage of innovation faster, thereby lowering their cost and delivering better service to their clients. Obviously, this assumes that the lawyers in both small and large firms are of the same caliber.

I believe that the quality of lawyering is not dependent on how large a firm is, but rather upon how clever the individual lawyers are. Being clever in arguing the law is paramount, but—increasingly—so is knowing how to use technology to gather information better and faster. Technology is increasingly important in how we persuade. An old (but wise) judge recently admonished a group of lawyers in New Orleans that “jurors expect lawyers to present visually compelling evidence,” adding that any lawyer who says “I’m too old to fool with this technology stuff” when addressing a jury is basically saying “I don’t know how to read very well.”

I couldn’t agree more.

BONUS QUESTION:  What is your favorite pop culture depiction of legal technology?

Probably The New Yorker cartoon where a guy with a hood is robbing a bank and the teller informs him politely that “You know, you can do this just as easily online.”

BIOGRAPHY: Ernest Svenson graduated from Loyola Law School in 1985 and then spent two years clerking for the Honorable Adrian Duplantier in the Eastern District of Louisiana.  He has practiced commercial litigation since then, first for a well-respected New Orleans law firm, and more recently as a solo practitioner.  He has started several weblogs, including PDFforLawyers.com and DigitalWorkflowCLE.com.  His Ernie the Attorney site (ernietheattorney.net) was chosen by the ABA Journal as one of the top 100 law weblogs two years in a row.  He believes that the practice of law is largely an “information processing business” and tries to help lawyers find more efficient ways to process their information. You can follow him on Twitter at @ernieattorney.

In recent weeks, no beverage on earth has been more widely discussed, analyzed, and investigated than hot coffee.  Indeed, it has been the subject of a recent HBO documentary and a point of contention on the many legal blogs that elected to review the film.  Just as the the media frenzy had finally begun to subside, hot coffee litigation is once again back in the news. It never seems to end, does it?

The Toronto Sun recently reported that McDonald’s has settled a claim with a Quebec woman after hot coffee spilled onto her leg back in May.  Reportedly, the woman ordered several cups of coffee from a McDonald’s drive-through.  As the attendant handed her the beverages,  the cardboard carrying tray allegedly buckled, spilling three cups of coffee into her car and onto her person.  Following the spill, she was transported by ambulance to an area hospital for second-degree burns.  She demanded $12,313.24, and the fast food company’s insurer honored the request.

Let’s not get ahead of ourselves and claim this settlement is evidence that McDonald’s serves an unreasonably dangerous product.  There are clearly other factors at play here to explain McDonald’s willingness to expeditiously settle this woman’s claim.  First, there is no real dispute among credible sources that hot coffee can cause burns when spilled onto someone.  Second, after all of the recent bad press, McDonald’s may have an incentive to tidily dispose of such matters. Let’s remember: McDonald’s has taken its share of criticism for refusing to settle medical claims due to hot coffee burns.  Be it right or wrong, McDonald’s needs to temper the potential for any additional bad press.

Finally, this is not your typical Stella Liebeck-style hot coffee case.  The Quebec woman – the potential plaintiff – was not herself the spiller of the coffee.  Not only was the coffee reportedly spilled by a McDonald’s employee, but also, the spilling may have been the result of an apparently dysfunctional carrying tray.  Obviously, the facts are subject to discovery, and there may be a number of unknown factors, but at present, there is no evidence from the Toronto Sun article suggesting the woman played any role in the spill apart from being the victim.  Even if McDonald’s maintained the position, often asserted here at Abnormal Use, that coffee is a beverage meant to be served hot, it still must account for the possible negligence of its own  employee and the reportedly defective tray it chose to carry said beverage.

Nevertheless, this case may be exploited to advance the questionable proposition that hot coffee is, by its nature, unreasonably dangerous and defective.  Let us remember, however, that coffee is meant to be served hot and when it is spilled, it will burn.  That is simply the nature of the product.

Of late, we’ve written much about legal documentaries. Thus, we felt obligated to inform you, our dear readers, that HBO is airing another documentary of possible interest tonight. The Civil Procedure and Federal Courts Blog has alerted us to the following:

An HBO documentary, Mann v. Ford, will air Monday, July 18, 2011, at 9:00 p.m. Eastern time.  It follows a mass action filed in 2006 arising out of the alleged negligent toxic poisoning of the Ramapough Mountain Indians’ land from the Ford assembly plant in Mahwah, N.J.

A synopsis of the film is here on the HBO web site.

We should note that we’ve not seen the program as of yet, so we cannot comment as to its merits or offer an official review.

However, if we had to guess, we’d say the makers of the film are probably not very fond of the Ford Motor Company. From the HBO synopsis: “‘Mann v. Ford’ follows community leaders Wayne Mann and Vivian Miligan and their lawyers over the course of five years as their fight for justice takes them from community centers to courtroom[s] of American justice to the halls of Congress.” The Plaintiffs in the depicted suit are represented by Vicky Gilliam of The Cochran Firm and Kevin Madonna of Kennedy & Madonna, L.L.P.

The Thoughts From My Camera blog offers some brief comments on the recent New York City screening of the documentary (attended by Robert Redford, whose son, Jamie, is one of the documentary’s producers), while Philip W. Thomas of the Mississippi Litigation Review and Commentary blog has a few thoughts, as well.

We may or may not watch this one, but if we do, we’ll be certain to let you know.

Depicted above is the cover to America v. The Justice Society #2, published way back in the halcyon days of 1985. We don’t recall this series all too well, although Wikipedia tells us that the narrative was set in an alternate universe and centered around the fabled Justice Society being placed on trial for treason for crimes committed during World War II. (The alleged crimes were apparently brought to life after the discovery of the diary of Batman who, in that universe, had been murdered). Note the apparent bailiff in the foreground drawing his weapon as the The Spectre threatens to disrupt the proceedings. The judge, not wearing a robe, holds his gavel while pondering his options.

Jared Wade at the Risk Management Monitor has a post of interest entitled, “No One Knows If Texting While Driving Bans Have Prevented Car Crashes.” Sure, it makes sense that they might (assuming motorists follow the law), but apparently, after a lengthy study by the Governors Highway Safety Association, no one found evidence in support of the proposition.

In light of the unveiling of Google+ (Google’s attempt to compete directly with Facebook in the social networking realm, for those of you not yet in the kn0w), Denise Howell of the Bag and Baggage legal blog analyzes its terms of service (as well as those of Google’s Picasa service) in this helpful piece. She ultimate concludes: “I’m not personally put off by the license Google asks users to grant, but it could use some clarification and adjustment on the issues of third parties and promotional use.”

Adam Waytz at Slate asks: “Will Americans be able to adapt to the autonomous car?” Back in October of last year, we here at Abnormal Use addressed the driverless car problem and what happens when technology outpaces the law. See here for that apparently forward thinking piece.

Oh, my. The Austin American Statesman reports: “The University of Texas filed suit today against actor Ryan O’Neal in an effort to seize a portrait of Farrah Fawcett by Andy Warhol that the university says was bequeathed to UT by the late actress.” We’d love to see the depositions that might be taken in that lawsuit.

We here at Abnormal Use like to think we have no fear.  Apparently, however, the pressure of opposing viewpoints has scared us into being “fair and balanced.”  According to Plaintiff’s attorney Ronald Miller, Jr. of the Maryland Injury Lawyer Blog, his criticism of our recent Hot Coffee commentary resulted in our lack of praise for the Chamber of Commerce funded documentary, InJustice.  Maybe Miller is right and we did feel pressure to exhibit our best Fox News impersonation?  Or maybe we just felt the need to note the film’s obvious biases?  We will let you decide.

Today, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field. For this latest installment, we turn to Bob Dorigo Jones, the Senior Fellow for the Center for America, the president of Michigan Lawsuit Abuse Watch, and the author of  Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever.   Not too long ago, we wrote about his well known Wacky Warning Labels Contest.  Intrigued, we couldn’t resist requesting an interview, which he was kind enough to grant.

The interview is as follows:

1.  What was your inspiration for the Wacky Warning Label Contest?

In 1997, I heard about a Batman cape that actually came with a label warning, “Cape does not enable user to fly,” and that got me thinking about all of the obvious warnings we see in America. Most people have seen labels like that, and since they’re not only funny, but are there because of lawsuit abuse, we thought it would be a good way to spark a national conversation about the need for common sense legal reform.  It worked, and it’s been a great vehicle for educating the public about the larger lawsuit abuse issue and how it affects everyone from job providers and doctors to the Little League, Girl Scouts and soup kitchens that feed the poor.

2.  You’ve been doing the contest for 14 years.  What has been your favorite label submission from those years, and why?

One of my favorites is a warning label on a scooter that says, “This product moves when used.”  Well, of course, it does!  The manufacturer would probably be sued if it didn’t move.  Unfortunately, accidents often happen when kids are playing, so the manufacturer put this obvious warning on its products because, in America, if you make a product, you’re constantly looking over your shoulder for the next lawsuit. It’s sad, but it’s a fact of life now.  The next time you see one of those wonderful little silver scooters that kids all around America use, look for that label!

3.  Are there any products out there that do not have labels, but should?

I don’t know about products, but there’s a service that definitely needs a warning.  Every ad for plaintiff lawyers that appears in the telephone book or on television should have a label warning potential customers that there are often better (and by that, I mean more effective and less expensive) ways of solving disputes than lawsuits.  Many people who have legitimate grievances or injuries pay tens of thousands of dollars or much more to lawyers for problems that they could solve themselves or through mediation that might cost as little as $100 to $200.

4.  Have you noticed any recent trends in product labeling that you believe litigators should be aware of? If so, what are they?

One trend that troubles me is that labels are becoming so long and filled with so many obvious warnings that many people don’t read them anymore.  Certainly, there are many warning labels that aren’t wacky and that we all need to read, but there are also user guides that are so long that they have to come with a special key section just to explain the warning labels.  The Food and Drug Administration is well-aware of the problems caused by overwarning and therefore goes to great lengths, although they aren’t always successful, to keep warnings on medicines short and to the point.  I think this is wise.  People need to know about dangers that aren’t common sense.

5.  What do you think these labels tell us about our collective mindset in this country, if anything?

After reading all of the labels in this country that warn us about the obvious, people might think Americans are idiots.  I’m not that cynical.  We’re smart people, and by the way, we’re not anymore likely to hurt ourselves using a product than a person in any other country.  However, these labels do tell us that Americans have a litigation problem and that a certain segment of the population is willing to overlook personal responsibility and sue someone else when they injure themselves.  Even worse, a certain segment of the judicial profession is willing to allow these lawsuits in their courts.  My hope, by working with the Center for America, is to increase public awareness of this problem and help create a collective mindset that is unwilling to accept abuse of the civil justice system any longer.

6.  What do you say to consumer advocates and lawyers who believe these types of labels are necessary?

I ask them why there isn’t any evidence that Americans are better off for all of these warnings.  People in other advanced, industrialized countries like Germany, France, Japan and Australia aren’t being warned like we are that a scooter moves when used, but they aren’t piling up injuries faster than we are.  How do I know?  Because reporters from those countries have come here regularly to interview me and have told me so.  They don’t understand why we put up with the lawsuits that lead to these obvious warnings.  So where’s the benefit?  The only ones benefiting are the personal injury lawyers who now make so much money that they can run ads on TV all day long when legitimate product makers can’t even afford to do that.

Beyond that, I say to the so-called consumer advocates and personal injury lawyers that America is worse off today because of all of the fear they have created in our lives.  Many product makers have refused to bring consumer-friendly products to market because they fear being sued.  This is true in many areas, but it is worst in the area of medicine.  The long warning labels they’ve made necessary on drug packaging are bad enough, but when a mother dying of cancer has to leave her children to go to another country to get medicine that’s not available here because of America’s litigation problem, we have to say, “Enough is enough!”

7.  What do you believe is the best – or the funniest – pop culture depiction of a product label or products liability issue?

One of the funniest things I’ve ever seen is a spoof commercial for a product called “Happy Fun Ball” that aired on “Saturday Night Live” several years ago.  It has a warning that takes up about 90 percent of the commercial and is probably where America is heading if we don’t get a handle on our lawsuit problem.  If you’ve never seen it, I would highly recommend it. Also, one of the funniest books I’ve ever read about frivolous lawsuits was written by a former producer at “Saturday Night Live.”  James Percelay wrote a book called Whiplash! that is the first book you should get after you buy Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever!

BIOGRAPHY: Bob Dorigo Jones, who serves as Senior Fellow for the Center for America, is the author of the bestselling Remove Child Before Folding, The 101 Stupidest, Silliest and Wackiest Warning Labels Ever. He is the host of a new national radio/Internet commentary, “Let’s Be Fair.” He has also appeared on dozens of national and international TV and radio programs, including NBC Nightly News, ABC News’ 20/20, BBC WorldNews, FOX News, and CNBC.  He also serves as president of Michigan Lawsuit Abuse Watch (M-LAW), a Center for America partner organization. Prior to joining CFA and M-LAW, Dorigo Jones served on the staff of the Michigan House of Representatives. He received a B.A. in economics and political philosophy from James Madison College at Michigan State University.

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.