Ah, trials. We dig them, but we can’t say that we’ve ever objected to an opponent’s question on the grounds that the attorney is attempting to confuse a client, particularly when the question at issue is as stratightforward as “Have you ever heard the word ‘school-house’?” In our mind that question does not prompt confusion or puzzlement, but such is the objection made by the attorney on the cover of the above referenced issue of Crime Detective Comics. Isn’t it just a yes or no question? Oh, well.

Our home office is in South Carolina, and we just opened an office in Charlotte, North Carolina, so we are always mindful when North Carolina makes legal news. So, when we saw the headline “North Carolina’s Rare Burger Ban Makes Red Meat Illegal” over at Overlawyered, we couldn’t help but investigate.

Friend of the blog Evan Schaeffer over at Beyond the Underground analyzes the issue of email spam directed at lawyers. We are sympathetic to his plight, as we are often deluged with unsolicited commercial email.

Today is the second anniversary of the birth of Brian Comer’s South Carolina Products Liability Law Blog, which ran its first four posts on May 20, 2009. Check out Brian’s first “Welcome!” post here. Happy birthday!

We’re big fans of the Findlaw Legal Grounds law blog, and so, we simply couldn’t resist pointing this story abot a Michigan man, clad as Batman of all things, who was apprehended by authorities while hanging from a roof. Criminal proceedings have been instituted against him, but will there be litigation?

I used to have a professor who would say something like, “The best way to win a lawsuit is on a technicality.”  I think what he was getting at (as all law professors force you to guess what they are getting at, rather than actually coming out and saying what they are getting at) is that it is much easier to win and defend on appeal a clear procedural decision.  The converse of that is, the worst way to lose a lawsuit is on a technicality.  Even worse, it is absolutely no fun at all to explain to a client that you lost a lawsuit because of a technicality.  Today, through Chow v. Reckitt & Colman, Inc., No. 81, 2011 WL 1752234 (N.Y. May 10, 2011) [PDF], we are reminded that procedure matters.

I think we can all agree that drain cleaner is dangerous and can cause physical harm if not used correctly.  After all, anything that will eat through grease, hair, and other sludge would probably taint the delicate skin of a lawyer.  In Chow, a restaurant employee used Red Devil Lye to clear a drain in a Manhattan restaurant and was injured during that task.   There was no problem dispensing with the failure to warn claim, but the design defect claim was a different issue.  In its motion for summary judgment, the defendant said something like, “C’mon, this is lye.  We buy it specifically because it devours sludge.  It’s dangerous because it has to be dangerous to do its job. ”  But the Court of Appeals denied summary judgment.  New York rules require the movant to produce evidence at the summary judgment stage in order to perform the risk-utility test.  There was no such evidence in the record. On this point, the Court of Appeals noted as follows:

[D]efendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue … cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry—either a retained expert or an employee of one of the defendants—could have done it. But the burden was not met.

In other words, the defendant couldn’t just point to the absence of evidence for the plaintiff’s case.  Indeed, the court was clear that the plaintiff could not win at trial on the evidence before the court, and at trial, a directed verdict would be proper.  Nevertheless, New York procedure requires the submission of evidence in cases at the summary judgment stage in cases such as these.  It was not enough to say that the product was dangerous by nature, but proof that there was no functionally equivalent safer alternative was necessary.

So, the lesson for today is, we must look at all of our cases and think about how we could lose them.  There are entire blogs about frivolous lawsuits, and defense lawyers are notorious for thinking that at least half of all  lawsuits are trumped up lottery tickets.  Nevertheless, not looking at the motion critically had some real consequences in Chow.  But the plaintiff’s lawyer did what he intended to do, which is survive summary judgment.  Don’t take your cases for granted, defense lawyers.  An overlooked procedural detail may bite you.

A San Diego mother of two young children recently filed a class-action suit in California federal court against Chuck E. Cheese’s, in which she alleges that the restaurant chain’s gaming machines are actually illegal gambling devices which could “foster addictive behavior in children by enticing them to play repeatedly for tickets.”  Although she seeks $5 million in damages, SignOnSanDiego.com reports that her attorney says the money is secondary to his client, who primarily wants to see the gaming machines removed from the restaurants.

The attorney for the plaintiff, Eric Benink, reportedly has said he does not think that “children should be exposed to casino-style gambling devices at an arcade.”  The complaint notes that with some exceptions, gambling is illegal in the state of California, although an exception is made for games that are based predominantly on skill.  Here, the complaint (boldly) alleges, the games are based largely on chance and “create the same highs and lows experienced by adults who gamble their paychecks or the mortgage payment.”  The games, of course, rely mostly on 25-cent tokens and, depending on the player’s score, dispense tickets that can be redeemed for prizes.  The higher the player’s score, the greater number of tickets dispensed; the more tickets, the better the prize.

Attorneys for Chuck E. Cheese’s are moving to dismiss the suit on two grounds.  First, they argue that the California Legislature never intended to make the operation of a children’s arcade game a criminal act.  Second and more interestingly, they contend that even if the game systems were illegal, then the plaintiff parent would be an admitted participant in illegal gambling and therefore is barred from seeking damages and restitution.

AOL News quotes one supporter of the lawsuit, whose daughter is “addicted” to the “Claw,” as saying: “We have left Chuck E. Cheese’s in her [sic] in tears begging for one more quarter.  I’ve seen her going through my purse for quarters.  It’s devastating.”  This latest lawsuit seems to serve as one more example of a lack of accountability of parents, who certainly have the option of keeping their children away from institutions that lure them into developing “gambling habits,” without the necessity of litigation.

Recently, the estates of Pennsylvania couple, Sean and Natalie Wain, filed a product liability lawsuit against Pfizer in the United States District Court for the Western District of Pennsylvania. The complaint alleged that the pharmaceutical company’s smoking cessation drug, Chantix, caused Wain to experience psychotic rage, shoot and kill his wife, and commit suicide in May 2009. Allegedly, Wain had been taking the drug for one or two weeks prior to the incident.

This action is only the most recent in a long line of Chantix-related claims. Over 100 lawsuits have been filed against Pfizer alleging that plaintiffs or their decedents committed suicide, suffered severe injury attempting to commit suicide, or exhibited unusual behavior after taking Chantix. Besides the consumption of Chantix, there is only one other apparent similarity among the plaintiffs – they were all deprived of cigarettes.

Being deprived of an addiction is difficult even without the alleged side effects of medication. We here at Abnormal Use know this all too well. No phone messages are checked or emails are read at the office until we get our first taste of coffee in the morning. On those rare occasions when that fresh nectar is not immediately available upon our arrival, we get a little angry. Our indignation only escalates as we await the percolation of our precious drink to relieve us of the perils of our temporary detoxification. While we have never reached the level of “psychotic rage,” we have also never been deprived of coffee for two weeks.

According to a study by the Institute of Safe Medication Practices, Chantix was shown to create violent behavior when users first began taking the drug, often before they had completely stopped smoking. The study also noted that the violent behavior ceased for 93 percent of the participants after they quit taking Chantix.

While this study may appear to be damning for Pfizer, a closer look indicates that it may not be as conclusive as the plaintiffs desire. First, the study was a mere compilation of Chantix adverse event reports submitted to the FDA. By limiting itself to the 78 reports submitted to the FDA and not examining the thousands of other Chantix users, the study lacks the ability to paint a global picture of the drug’s side effects. Second, this was not a controlled research study. The Institute did not gather a representative sample of individuals who wished to quit smoking. They did not study the individuals prior to the consumption of the drug. They did not administer any placebos. This study is far from what one would expect of viable scientific research.Without a controlled environment, the study lacked the ability to factor in third variables. By examining only cases reported to the FDA, at best, the study reveals correlation – not causation. With these limititations, suggesting that it is Chantix, not the process of quitting smoking, which is causing these side effects is premature.

We do not mean to suggest that these plaintiffs did not display violent behavior after taking Chantix. Nor do we suggest that quitting smoking always leads to psychotic rage. Rather, we suggest that we withhold judgment of Pfizer and Chantix before making sure that no other factors are at play. Of course, if making rash conclusions is your addiction, we know how withholding judgment may make you feel.

We here at Abnormal Use are now officially ready for our close up. As you can see, dear readers, we’ve undertaken a complete redesign of our fair site, and the change went live this past weekend. We’re very excited about the new look.

When we first began to develop this site in the early days of 2010, we started with a pretty straightforward – generic, really – Blogger template. We added a few minor bells and whistles, but our limited design skills kept us from doing much more  (as our collective knowledge of HTML design is limited to 1996 levels).  That Blogger template served us well for nearly a year and a half during this blogging enterprise. But we always hoped that someday in the future we would be able to unveil a sleek new look, just as the driver of a practical and economical vehicle longs for a sports car.

Well, we finally made it.

None of this would have been possible without our friends at The Skyline Group, the local media and design firm that redesigned the site and taught us all our new WordPress platform.  Here’s how they describe the magic they do:

With The Skyline Group, a full-service agency located in Greenville, South Carolina, one company handles the creative, interactive, video production and print needs of its clients. We maintain consistency of message and quality across all disciplines. From initial collaboration to final delivery, the entire group focuses on making sure your message is carried out creatively, seamlessly and effectively across all media to reach your target market.

If  you’re in the market for a new blog template or website design, we highly recommend them. Special kudos to Skyline’s Brian Whitaker for his advice and patience. (It can’t be easy to teach a bunch of know it all lawyers about Internet technology!)

We encourage you to explore the new site and give us your thoughts. For those of you who read the site by email or RSS feed, click here to see the new template. In the mean time, we’ll resume regular posting tomorrow.

• Depicted above is the cover of Justice #24, published way, way back in 1951. As you can see, it’s a very, very busy cover promising “true cases proving crime can’t win” and that “every case [is] taken from real life.” Apparently, the criminal defendant in question is incensed – and being restrained by the bailiff – while he charges that the witness on the stand is attempting to frame him for murder. Our trials are never like that.
• Lawyerist tells us how to avoid answering phone calls. This is good advice. Especially on a Friday, as today.
• Findlaw’s Legal Grounds blog has this story: “Thieves Return Superman Historical Marker.” We’re glad they found a conscience, although we hope the Justice League was somehow involved in the return of this plaque. We may never know.
• How might the iPad forever change our judicial system? Steven Farrell at The Mac Lawyer may have the answer.

This is not the first big award handed down against drugmaker Allergan. Last May, we reported here on a $15 million verdict in favor of an Oklahoma doctor who similarly alleged she suffered injury from Botox as a result of the maker’s failure to provide sufficient information regarding possible side effects. In that instance, Allergan vowed to appeal the verdict. It remains to be seen whether in this instance Allergan will take the benefit of Virginia’s punitive damages cap and pay, or whether it plans to similarly appeal the most recent verdict.

Last month’s Mwesigwa v. DAP, Inc., —F.3d—, 2011 WL 1584760 (8th Cir., April 28, 2011) [PDF] centered around the warnings on a can of DAP Weldwood Gel Formula Contact Cement. The cement is a construction adhesive, and the can looks harmless enough:The warnings on the can, however, tell a different story and were cited extensively by the Court, which described the instructions as follows:

“WARNING! FLAMMABLE! VAPORS HARMFUL AND MAY CAUSE FLASH FIRE” and “BEFORE USE TURN OFF MAIN GAS VALVE.” The lid further instructs the user to keep the product away from heat, electrical sparks, and flame; to shut off pilot lights; to refrain from smoking; to prevent buildup of vapors by opening windows and doors; and to shut off stoves, heaters, and appliances. In addition, the lid depicts an open can with vapors emanating toward a cigarette labeled “smoking,” a gas valve labeled “gas,” a flame labeled “flame/heat,” and electrical volts labeled
“electricity/sparks.” Each of the four pictures contain a bold red line crossed through the black-and-white image.The can further includes “Precautionary measures for use, handling, storage and disposal”:Use in a well ventilated area. Provide fresh air such that chemical odors cannot be detected during use and while drying. Vapors are heavier than air and will collect in low areas. Check all low areas (basements, sumps, etc.) for vapor before entering. Vapor may ignite explosively. Keep away from heat, sparks, and flames. Do not smoke. Extinguish all flames and pilot lights. Turn off stoves, heaters, electric motors and other sources of ignition during use and until all vapor is gone. Keep container closed when not in use. Do not reuse the empty container. Do not use in areas where static electric sparks may be generated. Empty container may contain explosive vapors. Do not weld, cut or torch on or near this container. Store away from oxidizers and caustics. Wear gloves. Avoid skin contact. Wear eye protection with side shields.

The can also included the following warnings: “DANGER! FLAMMABLE LIQUID AND VAPOR HARMFUL OR FATAL IF SWALLOWED,” “VAPOR HARMFUL,” “BEFORE USE TURN OFF MAIN GAS VALVE,” “VAPORS CAN TRAVEL ALONG FLOOR TO ANY SOURCE OF HEAT, SPARK OR FLAME IN NEXT ROOM OR BASEMENT .”

Obviously, when not handled properly, this product can have grave consequences. The plaintiff’s decedent in this case unfortunately learned this fact first-hand. He purchased a can to install new baseboards in his house, and accidentally spilled some of it in his laundry room. When he went to wipe it up, the vapors ignited and caused a flash fire. Mr. Mwesigwa suffered extensive burns and died because of his injuries. His widow and children sued the manufacturer, DAP, for (1) wrongful death on theories of negligence, strict liability, and failure to warn; (2) for negligent misrepresentation; and (3) for violations of the Consumer Product Safety Act. The district court granted summary judgment in favor of DAP. The plaintiffs appealed the summary judgment on the wrongful death failure to warn claims.

The Court did a nice job summarizing its findings in this way: “The label complies with the FHSA because the principal hazard to be avoided is flammability, and the way to avoid that hazard is to remove all potential ignition sources.” Because the extensive labeling on the can of DAP complied with those requirements, summary judgment was affirmed as to the failure to warn claims.

In Pooshs v. Philip Morris USA, Inc., No. S172303 (Cal. May 5, 2011), the plaintiff sued a number of cigarette manufacturers in California state court after being diagnosed with lung cancer in 2003. Previously, the plaintiff had been diagnosed with chronic obstructive pulmonary disease (COPD) and periodontal disease in 1989 and 1991, respectively, but chose not to pursue a claim at those times. After the state case was removed to federal court, the judge dismissed the plaintiff’s claims on statute of limitations grounds. Undeterred, the plaintiff appealed to the Ninth Circuit Court of Appeals, which in turn guidance from the California Supreme Court as to the application of the statute of limitations when separate diseases arise at different times from the same alleged wrongdoing.

The defendant manufacturers argued that allowing the plaintiff to bring her claim under these circumstances would violate the standard that a statute of limitations begins to run when the plaintiff suffers “appreciable and actual harm, however uncertain in amount.” The plaintiff argued against the application of that well-settled rule and contended that each of her three ailments was the basis of a distinct primary right. The California Supreme Court ultimately agreed with the plaintiff, holding that “two physical injuries . . . can, in some circumstances, be considered ‘qualitatively different’ . . .” for statute of limitations purposes.