• It’s Friday, so as per usual, we bring you legal themed comic book issues. We’re a bit troubled by the revelation in Action Comics #900, issued late last month, in which Superman appears to renounce his American citizenship. How can a comic book superhero so closely associated with the United States of America do such a thing? We’re puzzled. We’re crestfallen. The only other person we can think of offhand who attempted to renounce his American citizenship was Lee Harvey Oswald. That’s not good company. What is Supes thinking? How does this affect the citizenship of Clark Kent? What does Lois think about this decision? Friend of the blog Ryan Steans offers his analysis here, while our pals at The Law and the Multiverse blog analyze the legal issues here.
• Like many, we’re fans of the late, great novelist David Foster Wallace who, sadly, took his own life two years ago. Just a few weeks ago, Wallace’s last, unfinished novel, The Pale King, saw publication. We’re thankful that one of our readers writes in to report of a products liability lawsuit reference in Wallace’s mostly complete tome:
  

  Your readers may be interested in an amusing products liability case which appears in the recently published posthumous novel The Pale King by David Foster Wallace. On pp 200-207, a case is described in which a man’s arm is trapped in the doors of a subway train he is trying to catch, the fatal injuries that result, and the subsequent wrongful death litigation. That litigation is described as incredibly complex and such issues are raised as –

  1. “The manufacturer’s specifications for the doors’ pneumatic systems did not adequately explain how the doors could close with such force that a healthy adult male could not withdraw his arm” resulting in the manufacturer’s claim that the deceased “failed to take reasonable action to extricate his arm,” and the ensuing difficulties in refuting this claim.

  2. And, of course, the ever important question of whom to sue, and the conflict arising when the plaintiff realizes “that our legal team’s major criterion for arguing for different companies’, agencies’, and municipal entities’ different liability designations involved those different possible respondents’ cash resources and their respective insurance carriers’ record of settlement in similar cases—that is, that the entire process was about numbers and money rather than anything like justice, responsibility, and the prevention of further wrongful, public, and totally undignified and pointless death.”

  Interesting.

• Eric Turkewitz of the New York Personal Injury Law Blog predicts that the iPhone GS data controversy will lead to a flurry of subpoenas. He notes that the data would be handy in wreck cases and other contexts, as well. We wonder how receptive Apple would be to subpoenas from all over the country seeking such data. Will they be as resistant to such discovery as Facebook and other such sites? We shall see.
• By no means is Abnormal Use a career site; we’re not here to help you find jobs. But friend of the blog Monica Handa offers these helpful tips for those seeking legal jobs in these trying and troubling economic times. As the hiring contact for her firm, Monica has seen her fair share of deficient resumes, so perhaps she knows a thing or two about the perils of job seeking and issues relating to such quests. An aside: We might add that when applying for a job at our firm, mentioning your adoration of Abnormal Use is a plus. It’s probably best that they don’t let us bloggers play any role in that process. Oh, well.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to University of Maine School of Law professor Jennifer B. Wriggins, who teaches Torts, Insurance Law, and Family Law. Last year, her book, The Measure of Injury: Race, Gender, and Tort Law, was published by the NYU Press. The interview is as follows:

1. What do you think is the most significant recent development in torts and products liability litigation?

I think that the continuing lack of conceptual clarity about comparative fault is very significant and interesting. What I mean is this: While contributory negligence has been on the wane for decades now there remains, I think, lots of vagueness about how its replacement, comparative fault (comparative negligence), is supposed to work. Statutes and jury instructions are often not at all clear about how the defendant’s action is supposed to be compared to the plaintiff’s action, even when they are engaging in the same activity, like driving. This is particularly the case with multi-party litigation. There is, relatedly, rather little clarity about how to quantify (and thus compare) actions by many different parties that are very different in nature. Yet, comparative fault is widely accepted and generally seen as an important improvement over contributory negligence. There is a huge disconnect, I think, with the everyday way that people think about causation and fault, and the fascinating and unwieldy system we have now with comparative fault and comparative responsibility.

2. What rule or concept in modern torts or products liability jurisprudence do you believe is the most outdated, and why?

One rule that strikes me as possibly outdated is the rule that juries are not allowed to learn about liability insurance policies. Even when a case involves an auto accident, and auto insurance is mandatory in a state (as it is in almost all states), so that jurors who are car-owners (probably most jurors) know that there is likely to be insurance, jurors are not supposed to know about insurance. I understand that it is important for the liability and damages issues not to be affected by the presence or absence of insurance, but I think it is very likely that jurors think about insurance anyway. I would want to think about this more before advocating it, but perhaps we should just give jurors the insurance information and tell them it should be kept separate from the liability and damages determinations. If they are hypothesizing about insurance and taking it into account anyway, then giving them accurate information should not hurt the process. I can see both sides of this, but I think we are probably deluding ourselves if we pretend jurors don’t know and aren’t thinking about the existence of liability insurance.

3. You have written much on the role of race and gender in litigation. In your view, how do these concepts affect tort cases specifically, and what would you advise civil litigators to keep in mind on that front?

One place where race and gender can come into play is damages. In my book, The Measure of Injury: Race, Gender and Tort Law (NYU Press 2010), my co-author Martha Chamallas and I talk about how in cases where an individual lacks an earnings history (for example a child) and suffers an injury that will affect future earnings, experts and courts still use race-based and gender-based earnings tables to project earnings into the future. Many experts and lawyers, I think, simply assume that these categories have to be used and don’t think of them as problematic at all. We argue that this use of tables is deeply problematic and potentially unconstitutional because using the tables in court is in effect a race-based or gender-based classification. Judge Weinstein of the Eastern District of New York issued a ruling in October 2008 that agreed with this position. We also talk about how caps on non-economic damages can affect claims of women, members of racial minorities, and minority women, who may have serious injuries but small lost earnings, making their claims perhaps too small to be worth bringing. Research has suggested this is happening in California and Texas, for example.

BONUS QUESTION: What do you think is the most interesting depiction of the interaction of law and medicine in popular culture, and why?

One of the most insightful depictions of the interaction of law and medicine in popular culture is a book, Damages, by Barry Werth (1998). He deals in a very nuanced way with the interaction of insurance, doctors, patients, and lawyers in a heart-breaking Connecticut infant cerebral palsy case. It’s also a great read.

BIOGRAPHY: Professor Jennifer B. Wriggins, the Sumner T. Bernstein Professor of Law at the University of Maine School of Law, teaches Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Adam Avery, President and Brewmaster of the Avery Brewing Company. Why the president of a brewing company? The answer is two-fold. First, we here at Abnormal Use love to experiment (in moderation of course) with the greatest craft beers our country has to offer. Second, Avery produces a Belgian-style ale known as Collaboration Not Litigation. Once we heard the delightful name of that brew, we simply had to talk to its maker. Avery was kind enough to submit to a brief interview about the ale and the source of its name.

AVERY: I believe 2000, 2001, I met Vinnie Cilurzo from Russian River Brewing Company, and we became really good friends. . . . [W]e both had a beer called Salvation. We had mutual friends and, you know, so we were destined to meet and we hit it off. I asked, “Are you going to have a problem with [the beers with the same name]?” . . . I do remember him saying at some time we need to figure out – we should do something together about this. . . . So, the years went by, we became really close friends, and I visited him a bunch of times. When I got out there – I believe it was like 2004 – I showed up at his brew pub and pounded a bunch of beers. We started talking about this idea and his wife, Natalie, came up with the idea to call it Collaboration Not Litigation because he does a lot of “-tion” beers. He has Consecration, Damnation . . .He just has this theme going.

[ON THE BREWING OF THE ALE]

AVERY: We sat down and we blended both of our beers together out of the bottles and came up with the percentage that we thought was really good. So we said as soon as we have time we’re going to do this. We’re going to do a batch of beer and we’ll blend them and we’ll sell it. Well, these collaborations started to become more and more popular. Somebody called me from a brew magazine, and I told him the story. It goes to press. So I see it in this magazine, and I called Vinnie and say, “Hey, we’re kind of f***** here. We actually have to do this beer now, right?” So, he came here to the brewery in 2006 or 2007. He brewed a batch of his beer with us and then we brewed ours. We blended them at the right rate and then boom. I thought it was going to be a one and done. We sold a lot. People were excited about it, so we do a small batch once a year. We brew it typically in January. . . . It’s a fun beer. It’s more about like it just shows the craft industry is really about sticking together and about the rising tide floats all boats, that sort of thing.

[THOUGHTS ON ALTERNATIVE DISPUTE RESOLUTION]

South Carolina’s suit is the fourth case of its kind to go to court. We previously reported here on a similar case tried in Louisiana. In that case, the jury awarded a $257.7 million verdict against the drugmaker. The jury found that the company had sent 7,604 “Dear Doctor” letters and made a total of 27,542 sales calls in which its sales representatives claimed Risperdal was safer than competing antipsychotic drugs such as Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel. The Louisiana jury assessed penalties of $7,250 for each violation. Of the other two cases, the Pennsylvania case was dismissed in June, and another case in West Virginia was dropped in December.

As reported by TheState.com, Janssen has appealed the Louisiana verdict, although representatives have reportedly not yet decided whether they will do the same with this latest South Carolina jury verdict. That likely will depend on the dollar number reached by the Spartanburg County judge. We’ll continue to follow this case and report on Judge Couch’s ruling.

• We recently realized that most newly minted lawyers are now too young to remember watching “L.A. Law” when it originally aired back in the late 1980s and early 1990s. This is sad news. How is it that a practicing lawyer can be unaware of the fictional exploits of the McKenzie Brackman firm? Was it that long ago in the past when the show left the airwaves in 1994? Was it that many years ago that the Rosalind Shays character perished by falling down an elevator shaft? So, what can we do but commemorate this program by sharing with you the cover of Mad Magazine #274, published way back in 1987? (An aside: One of the writer contributors of this blog actually bought this issue off the newsstand back in ’87, but we’re not going to tell you which one of us it was so as to protect the innocent.).
• You know, we here at Abnormal Use are usually unsympathetic to folks trying to get out of jury duty, but we think this may be the best excuse we’ve ever heard.
• Eric Goldman of the Technology & Marketing Law Blog directs us to a new federal case from Nevada in which the court found that the republication of a newspaper article in its entirety was fair use under the particular circumstances of the case. We hope that new jurisprudence doesn’t apply to Abnormal Use posts in their entirety. Eek.
• Check out Just Enrichment, a new legal blog. Interesting stuff. (Hat tip: Volokh).
• Ruthann Robson of the Constitutional Law Prof Blog alerts us to an interesting footnote about music criticism from a 1989 dissent by Justice Marshall. That still doesn’t top the Fifth Circuit Talking Heads opinion, though. But then again, what possibly could?
• This new Georgia suit might be the most interesting suit you read about this week.

According to the complaint, such claims made by the company simply are not supported by scientific evidence. Criticism of the company’s products and allegedly misleading advertisements, it seems, has grown in recent weeks. TODAY.com reports that the Campaign for a Commercial-Free Childhood, a national watchdog group that previously successfully campaigned to change the way that the “Baby Einstein” program marketed its products, has filed a separate complaint with the Federal Trade Commission alleging that makers of “Your Baby Can Read” have engaged in deceptive marketing practices to convince parents to buy its products. It has requested that the FTC stop the company from continuing its allegedly deceptive marketing practices, and that it offer full refunds to “all those parents who have been duped.”

It remains to be seen what effect these two recent complaints will have on the maker of the infant educational products and on its approach to advertising. It seems that the old-fashioned approach to teaching your children to read – by reading aloud to them – triumphs.

In Glorvigen v. Cirrus Design Corp., 2011 WL 1466393 (Ct. App. Minn. April 19, 2011) [PDF], the Minnesota Court of Appeals considered how far a manufacturer’s duty to warn extends in the context of piloting an aircraft. In so doing, the court found that any such duty does not extend so far as to require the manufacturer to provide pilot training.

1) What do you think is the most significant recent development in torts and product liability litigation?

It goes beyond tort and product-liability litigation to some extent, but the erosion of the preemption doctrine is of some concern. It’s ironic that, even as we see the federal government assert its authority over local affairs in legislation such as PPACA and cases like United States v. Arizona, we’re simultaneously seeing this administration insist that state court juries should exercise dominion over interstate commerce already fully regulated by the federal government. This seems precisely backwards.

2) The Wall Street Journal has a characterized you as a “leading tort reform advocate.” In your view, why is tort reform needed in our system, generally, and in product liability litigation, specifically?

I view tort reform as a means to an end, rather than an end in and of itself. I consider myself a consumer advocate, and it just so happens that the pendulum of the legal system has swung so far in favor of lawyers that consumers are being hurt, and tort reform is needed to restore balance. If ever the pendulum swings too far the other way, you’ll see me switch sides on these debates. As it is, if anyone asks me, I tell them I oppose collateral source reform, which just punishes individuals with the foresight to purchase insurance.

There are so many places where reform is needed. The judiciary and the bar aren’t doing enough to punish or deter fraudulent cases. We have very sensible rules that courts don’t second guess the good faith decisions of lawyers or prosecutors, or the exercise of business judgment by executives, but those rules are thrown out the window when it comes to second guessing the design decisions of engineers or the judgment calls of physicians, though there is every reason to believe that courts are even less likely to get those questions right, especially in hindsight. And uncapped noneconomic or punitive damages introduces an element of complete randomness into the system. Even when the system is considered to be “working,” the majority of the expense of the system goes to paying the administrative costs of the attorneys rather than to the putative victims: we wouldn’t tolerate that level of overhead in any other sector of the public or private economy. All of these features distort incentives, deter innovation, result in unjust punishment of the innocent, and hurt the economy and consumers in the long run.

3) Recently, we here at Abnormal Use have written several pieces regarding the Stella Liebeck hot coffee case in which we have cited some of the articles you have written on the subject. Why have you taken an interest in that litigation, and why is it important to dispel some of the “urban legends” that have arisen?

For twenty years I’ve had an interest in urban legends (I was friends with the Snopeses before there was a snopes.com), and several of them stem from the legal arena. One of my favorites involves the Baby Ruth bar: it’s a famous trivia answer that the candy bar was named after Grover Cleveland’s daughter, rather than the baseball player Babe Ruth. Snopes and I did some research in the 1990s, and concluded that the “Grover Cleveland’s daughter” story was almost certainly invented for purposes of trademark litigation against Babe Ruth, who had a competing candy bar.

The Stella Liebeck case was exactly the sort of thing that turns into an urban legend, and there are certainly a lot of inaccuracies that crept into the story as it went viral. The Liebeck case got politicized, however: it was an outrageous result and picked up as a poster child for tort reform, and, fascinatingly, the trial lawyer lobby, instead of reasonably saying “Look: the justice system is never going to be 100 percent correct, there have been a dozen hot coffee cases before this one where the courts got it right and threw it out, and you can’t make public policy based on a single anecdote just because the judge made a mistake here” decided to engage in a misinformation campaign to argue that the Liebeck case was both correct and an aspirational result for our tort system – and a disturbing number of law professors joined that cause. If you Google for the case, the vast majority of results are trial-lawyer sites filled with misstatements of the facts and laws. It’s gotten to the point that, in the majority of tort reform debates I participate in, it’s the trial lawyer who is the first to introduce the subject. I’ve been following the case and rebutting the misinformation on both sides since it first made the news, and it just so happens that the majority of misinformation is coming from the plaintiffs’ lawyer side these days. One of these days, I’ll lock myself in a room for a couple of weeks and write a law review article on the subject so there can be a one stop place for truthful information and arguments about the case.

I have a popular talk I give to law schools where I talk about the hot coffee case and a couple of other lawsuits against McDonald’s called “The Law of McDonald’s” and use that as the framework to talk about the two visions of tort law: personal responsibility versus deep pocket compensation of victims, and why I prefer the personal responsibility route.

4) As the founder of the Center for Class Action Fairness, you have sought to protect the interest of consumers in class action settlements. In your opinion, what needs to be done in order to balance the interest of consumers in class action settlements with the need for tort reform?

Assuming that the Supreme Court doesn’t do anything crazy in the Wal-Mart case, the law is, for the most part, in the right place, and it’s just a question of judges exercising their responsibility to apply it correctly – which is hard to do when the settling parties are making an ex parte presentation to the court, and good-faith objectors don’t have the financial incentive to hire a lawyer to make sure the court gets it right. That’s why I do the pro bono representation that I do: someone’s got to do it.

There are certainly some legislative tweaks possible to resolve some ambiguities in the law that class action lawyers have used to benefit themselves at the expense of consumers. I don’t think it’s a tort reform thing; it should be a bipartisan good government thing. Plaintiffs’ lawyers, as a group, should be supporting what I do, because class action lawyers like Milberg and like Kabateck Brown Kellner make them all look bad when they negotiate settlements that don’t do anything for the class but pay the lawyers millions.

BONUS QUESTION: What do you think is the most interesting depiction of products liability and/or class actions in popular culture, and why?