With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.
The Associated Press is reporting that Altria Group, Inc., the maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. Estate of Bobby Hill v. U.S. Smokeless Tobacco Co., FST-CV-05-4003788 (Connecticut Superior Court). The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42.
Attorney Antonio Ponvert III, who reportedly represented the decedent’s family, had some powerful ammunition in the form of “incredibly damning documents” to use in his battle against the tobacco maker. According to him, his case was bolstered by some previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers.
While this sort of information and the thought of a multi-million dollar pre-suit settlement may convince many plaintiffs’ attorneys to sign up some clients, an Altria spokesman has reportedly issued a statement to assuage such desires. According to the spokesman, “[the company has] no intention of settling cases such as this in the future.” In fact, there were several circumstances at issue here that made this particular claim unique.
First, Altria acquired the named defendant, U.S. Smokeless Tobacco Co., last year, and reportedly was perhaps honoring an agreement that that company had made with the plaintiff prior to the acquisition. Second, it also is possible that Altria simply wanted to resolve all legal issues remaining from its acquisition. Third, the plaintiff was not a drinker or user of cigarettes, which are risk factors tobacco companies often point out to as possibly having caused the cancer. Finally, the plaintiff was a relatively young, married father of two who died in a particularly painful and gruesome manner. The plaintiff had undergone multiple surgeries to remove his tongue.
This is certainly an interesting first-of-its-kind. It remains to be seen whether this is truly a unique event, or simply the first of a new strategy for Big Tobacco product liability matters.
In a recent indemnity action brought by a residential care facility for the severely developmentally disabled against a plumbing company and a mixing valve manufacturer, the U.S. District Court for the Northern District of California granted in part and denied in part a manufacturer’s motion for summary judgment on the plaintiff’s manufacturing and design defect claims. Res-Care, Inc. v. Roto-Rooter Servs. Co., — F. Supp.2d —, No. C-09-03856, 2010 WL 4367219 (N.D. Cal. Oct. 28, 2010). The plaintiff commenced the action after settling a lawsuit for $8.5 million with the conservator of one of its residents who was badly scalded during a shower at the plaintiff’s facility.
Defendant, Leonard Valve Company (“Leonard”), manufactured a Leonard Valve Model 110 tempering valve (“the valve”) that was attached to the water heater at the plaintiff’s facility. A warning label placed in the product catalog and affixed to the valve itself indicated that the valve was not to be used for “direct showering and bathing applications,” should not be considered an “anti-scald device,” and should be inspected every six to twelve months. Leonard designed the valve in the 1950’s, and it had never been certified to meet any industry standards. The plaintiff was unsure of the age of the valve, but estimated that it had been installed in 1995. At any rate, the valve was visibly present and attached to the showering line when a plumber replaced the hot water heater at the plaintiff’s facility in 2004, approximately one week prior to the scalding. Following the accident, the valve was found to be corroded and likely inoperable for at least two months.
While the Court began its opinion by ruling in favor of Leonard on the plaintiff’s manufacturing defect claim citing a lack of evidence that the valve was not installed as an anti-scald device, Leonard’s fortunes quickly deteriorated. Despite Leonard’s argument that its warnings reduced the likelihood of injury and the fact that the valve had not been inspected for nearly ten years (contrary to the valve’s specific instructions to do so every six to twelve months), the Court held there to be a triable issue of fact as to the plaintiff’s design defect claim finding little evidence to show that the benefits of the Model 110 valve design outweighed the risk of danger.
Further, the Court held that there was at least a triable issue of fact as to whether the warning attached to the valve was ambiguous. The plaintiff argued that the phrase “direct showering or bathing application” was ambiguous by presenting evidence that the experienced plumber was unable to decipher the meaning of the phrase. While it could be argued that the definition of “bath” could encompass anything from a simple handwashing to a complex soak in the tub, it is interesting that the Court and the experienced plumber could assign an ambiguous meaning to the phrase “direct showering.” Apparently, the Court was aware of a line of cases assigning ambiguous meanings to unambiguous terms which the counsel for Leonard was not privy.
Had Leonard been aware of the Court’s opinion on the adequacy of its warning label, perhaps it would not have insisted on further relying upon it in defense of its argument for summary judgment on the plaintiff’s negligent design claim. Unfortunately for Leonard, the Court, in denying Leonard’s motion, held that warnings are not relevant in determining whether a manufacturer breached a duty to design a safe product and relied instead on the evidence that Leonard never considered an alternative design and failed to test to industry standards.
Lost in this discussion is the fact that the plaintiff not only failed to maintain the valve, contrary to Leonard’s instructions, but also knew at least five days prior to the incident that the water temperature was wildly fluctuating and still elected to place a severely developmentally disabled resident into the shower. This case demonstrates that despite instructions on the proper use of a product that may appear clear and unambiguous (at least to the average products liability legal blog contributor), a manufacturer can never be entirely certain that its product is not going to be misused by even the most “sophisticated” consumer.
We here at Abnormal Use celebrate our first birthday today. That’s right: Our very first post – our mission statement – was published one year ago today. We’ve greatly enjoyed bringing you products liability litigation commentary over the past year, and we were humbled when we were named to the ABA Journal‘s Blawg 100 list late last year. (Another unexpected joy was learning yesterday that we had been named by the ABA Journal as the most popular torts blog).
What else to say on the occasion of the first anniversary of the birth of one’s law blog? We could look forward to the coming year and preview what we have in store for our readers. But that would be telling. We could wax philosophical as some blogs do on such occasions, and there is some purpose to such self reflection. So we’ll do just that, if only for posterity.
It all began in the final months of 2009. Those were the halcyon days during which we planned and plotted this blogging enterprise. Knowing that a successful blog must offer fresh commentary weekly, preferably daily, we wanted to ensure that we could do so. Thus, we developed an infrastructure that included two principal authors and five contributors, each with his or her own assigned beat to cover. It has proven to be a successful formula, and we are pleased with the results. We think the ability to post daily is one of the keys to our success.
We also knew that in order to keep our commentary lively and interesting, we’d need to inject a bit of personality into our posts. This, of course, is something we learned from our good friends over at the Drug and Device Law blog who aren’t shy about expressing their opinions. (Neither, in fact, are our pals Walter Olson and Ted Frank at the Overlawyered and Point of Law blogs).
One thing that we have not yet accomplished is to establish this site as a place for back and forth discussion between we, the authors and contributors, and you, our readers. We know from our Sitemeter statistics that we have a certain number of visitors each day, including some who we suspect are regular repeat visitors. (If you’re a regular, say hello!) In the coming months, we’d like to encourage a dialogue between ourselves and our readers on our topics of interest.
In the end, though, we look back and must confess that we’ve quite enjoyed this blogging thing. We look forward to another year of the same, and we thank you again for your support.
After recalling more than 11 million dangerous cribs over the last three years, the U.S. Consumer Product Safety Commission (“CPSC“) recently approved, effective June 2011, new mandatory safety standards for baby cribs and issued a ban on the manufacture and sale of cribs with drop-down sides. Childcare facilities and hotels have 24 months from the publication of the rule to institute compliant cribs into their facilities. Reports of at least 32 infant strangulation and suffocation deaths since 2000 associated with drop-side cribs prompted the CPSC’s decision.
USA Todayreports that prior to the CPSC announcement over 900 incident reports were filed with 14 crib companies indicating that drop-side cribs were falling apart, injuring and killing infants. The combination of malfunctioning hardware, cheap plastics, and problems in assembly would cause the crib’s drop-side rail to detach creating a “V”-like gap and potential “suffocation zone” between the mattress and the side rail.
In response to past recalls, crib manufacturers such as LaJobi and Delta offered free “retrofit” kits to customers to immobilize the drop-side railings. While an immobilized railing deprives the user of the potential benefit of a drop-side crib, there is no evidence that the retrofit conversion kits are ineffective in remedying the safety concerns. Unfortunately, as CPSC Chairman Inez Tenenbaum indicated in her statement [PDF] on crib safety before the Subcommittee on Oversight and Investigations, there are still “far too many parents who have not responded to recall announcements.” Even with the lack of recall response, we must question the necessity of an absolute ban which places childcare facilities in a financial quandary during an era of economic uncertainty when cost-effective measures could be taken to alleviate the potential hazards of drop-side cribs. Certainly, childcare facilities would opt for a free retrofit kit when faced with the choice of bearing the expense of replacement costs.
We here at Abnormal Use would never advocate for the continued presence of a product in the marketplace that poses potential serious injury to children. If I discovered that my daughter’s “Handy Manny Talking Tool Box” was defective and posed a serious safety hazard (besides the threat to her father’s sanity after hearing its catchy jingle repetitively), I too would become a persistent voice in the ear of the CPSC. However, a total ban on drop-side cribs only serves to alleviate an alleged design defect at the expense of the consumer.
On one hand, the CPSC is justified in its pursuit of improving crib safety standards. After all, these standards had not been revised since 1982. On the other hand, child care facilities are left to shoulder the burden of these changes when a cost-effective measure could have cured the problem. Presenting childcare facilities with the choice of either complying with the recall or bearing the replacement costs of new cribs would have protected these facilities and still achieved the desired outcome of child safety.
Through this decision, the CPSC is placing manufacturers on notice that it will not tolerate repeated massive recalls of products that pose serious threats to the safety of their users even when a cost-effective measure may be taken to remedy the design defect. Unfortunately, at this time, the CPSC decision still leaves me having to take my own draconian measures to protect myself from the serenade of Handy Manny and his toolbox.
We here at Abnormal Use wish you and your family a very Happy New Year. However 2011 turns out, we expected it to be at least somewhat different than how these men in 1931 predicted it would be.
By the way, the image above is the cover of Action Comics #41, published way back in 1945. As you can see, Superman is helping to usher in the new 1945 while bidding farewell to 1944.
Have a safe and eventful holiday. We look forward to bringing you plenty of commentary in the coming year.
We here at Abnormal Use are still surprised that this is our last post of 2010. So without further ado, we present our final “Friday Links” of the year. Have a safe evening tonight.
The Criminal Justice Degrees Program lists the “10 Best Legal Shows in TV History” (including embedded video). Without a mention of Harvey Birdman, the list is a bit mainstream, but it’s definitely worth your review. (Hat tip: The Volokh Conspiracy).
We’ve not yet seen the new remake of True Grit, but we see that at least two legal blogs have remarked upon legal concepts depicted in the film. That’s right; both the EvidenceProf Blog and The Faculty Lounge are abuzz with legalisms in the latest cinematic offering from the Coen Brothers. See here and here for more.
Jeremy Telman of the Contracts Prof Blogcomments upon the new lawsuit filed by the actresZooeyDeschanel. Kudos to him for the Lady Duff Gordon reference.
As 2010 draws to a close, we thank Dan Eller and Mary Giorgi for their contributions to the site. Both began the year as founding contributors to this site, and both have now retired from the blog (although we still get to see them each day at the office). Associate Frances Zacher took the place of Dan a few months ago, and starting next week, associate Nick Farr will assume responsibility for Mary’s beat on the blog.
Today, in our last substantive post of the year, we remember the trial. For many reasons, there just aren’t as many trials as there used to be as in those days of yore. We often hear the older lawyers in our community tell tales of the old days – prior to the adoption of more formal discovery rules – when litigators litigated and juries rendered verdicts. These days, with the voluminous information yielded by years of discovery, both sides of a case know each others’ strengths and weaknesses such that they can readily evaluate the worth of that case. Coupled with the rise of mandatory mediation, most cases settle before being fought in the courtroom.
Sure, there are many cases that should not go to trial for a variety of reasons, most notably cost and uncertainty. But many that can and should see the courtroom are not tried. We, as lawyers, should not be afraid of trying cases. Nor should we refrain from advising our clients to take their meritorious defenses to trial if the circumstances warrant it. That’s part of our job, too.
Earlier this year, one of the shareholders at our firm defended a difficult case and prevailed after a long, hard-fought trial. Fresh off that victory, he sent the following email to all of our firm’s attorneys:
[W]e do not need to be afraid to try cases to juries. We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case. At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial. Juries almost always do the right thing. While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.
As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation. There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial. . . . [W]hile trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.
…
And, even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:
“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcomings; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
As we all know by now, legal technology is rapidly, rapidly advancing, and the manner in which lawyers conduct research and communicate continues to evolve at an exponential pace. However, one aspect of the legal profession which has not significantly changed in the past several hundred years is the judicial opinion – that document issued by the court which explains the logic and reasoning behind the court’s disposition of a particular case.
A law professor of mine once remarked that the purpose of the judicial opinion is to explain to the losing side why it did not prevail in the matter. Courts – from the highest in the land to those with the least amount of power and jurisdiction – issue the same types of opinions that have always been issued. Sure, private companies like West and Lexis capitalize upon the issuance of opinions and offer them in modified formats for practitioners (with hyperlinks to cited cases, head notes, star pagination, and other such bells and whistles.) However, the issuing courts themselves have not dramatically altered the nature of the judicial opinion in any way (save for, perhaps, making them available digitally on the Internet, although that’s a different issue).
Why is that?
Well, perhaps Courts are not as well positioned as private industry to make such changes in the manner in which they draft opinions. But what could Courts be doing differently?
Take, for example, the relatively recent U.S. Supreme Court case of Scott v. Harris, 550 U.S. 372 (2007). In that case, the U.S. Supreme Court found that a video of a police pursuit (seen in the YouTube clip above) “blatantly” contradicted the version of events recounted by the Plaintiff – the suspect of the pursuit – who claimed the deputy at issue engaged in excessive force and an unreasonable seizure when the deputy’s termination of the pursuit resulted in an accident which left the Plaintiff a quadriplegic. Thus, the Supreme Court reversed the lower court and found that summary judgment should have been entered for the defendants, primarily based upon the video evidence. That’s some twenty-first century jurisprudence, to be certain.
The Court found that the video – as an objective recording of the litigated events – trumped the Plaintiff’s testimony to the extent that summary judgment could be entered despite that interested witness testimony. Now, certainly, the parties to that litigation possessed and were aware of the contents of that video, but the many, many readers of that opinion – as strangers to that litigation – relied upon the Court’s recitation of its interpretation of that video. (The Court attempted to cure that issue in this case by posting the video on its own website.).
In this day and age of digital images and technology, when government reports are routinely issued with photographs, charts, and images, why is this not done more often by judges? Courts routinely discuss the admissibility or authenticity of photographs without actually publishing the photographs in the opinions themselves. Often, jurists discuss schematics, deeds, plats, and other such documents without actually including the relevant imagery in the opinion itself. Certainly, embedded content in a judicial opinion could offer many advantages.
Perhaps this is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memoranda in support of motions, rarely does the attorney actually embed the photograph into the pleading itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.
Certainly, there are plenty of reasons not to include photographs in opinions. Privacy concerns and the fact that photographs may be inappropriate for general publication due to the subject matter depicted certainly come to mind. In some cases, the image at issue may be copyrighted, and since court opinions themselves cannot – or should not – be copyrighted, their inclusion in an opinion may prompt numerous questions best left unasked and avoided altogether.
But in the end, the law, and the process by which it is communicated, must evolve.
Dissenting in Hampton v. Norfolk & W.R. Co., then North Carolina Supreme Court Justice (and later Chief Justice) Walter Clark wrote:
The law avails itself of every advance in science which renders the investigation of truth more accurate, and recent authorities have admitted, as aids to a court in its search after truth the Roentgen or X-ray photographs; their admission being opposed on the familiar principle, so often appealed to in the courts of this country, that this kind of evidence was unknown to the learned lawyers of the Heptarchy, and therefore was no evidence at all. Doubtless, in the near future, projectoscopes may be used in the court room, where the object shall be to convey to the minds of the jury a true picture of living action, as the movements of a horse, of a train, an assault and battery, or a riot, and the like. Law, like medicine, must make use of every improvement that will secure greater certainty in attaining its object.
Although that opinion addressed the admissibility of photographs, its logic holds true. Perhaps judicial opinions themselves should make use of technological improvements. We’ll see.
A New York jury on December 8 awarded a 30-year old plaintiff $66 million in her suit against the maker of an exercise machine that fell on her, rendering her a quadriplegic. Barnhard v. Cybex International, Inc., No. 2368/2005 (Supreme Court, Erie County, New York). The plaintiff filed suit against Cybex International, which is a leading manufacturer of exercise equipment, and against her employer at the time, Amherst Orthopedic Physical Therapy. As reported by CNBC, the jury apportioned 75 percent of liability to Cybex, 20 percent to Amherst Orthopedic, and 5 percent to the plaintiff. Cybrex had only $4 million in insurance coverage.
At the time of her injury in 2004, the plaintiff was working as a physical therapist in Buffalo, New York. She reportedly was performing shoulder stretches and had one hand placed on top of a leg extension machine. As she stretched back with her shoulder and arm, the 500-pound machine fell on her, breaking two vertebrae and compressing her spinal cord.
The plaintiff alleged in her suit that Cybex sold a defectively designed, unstable product, and that it failed to provide adequate warnings and instructions in that it issued conflicting instructions regarding the machine’s installation and anchoring requirements. The jury also reportedly concluded that Cybex failed to provide notice or warning of the tip-over hazard after having received notice of other injuries on similar Cybex machines.
Cybex plans to appeal the recent verdict, which the Boston Heraldreports will, if it stands, likely bankrupt the small company. It cites to a recent report of an analyst who concluded that Cybex’s earnings would not cover its operating expenses and the estimated $45 million it would need to borrow to cover the judgment. Cybex Chairman and CEO reportedly said of the outcome: “We strongly believe that Cybex was not negligent and was in no way responsible for this tragic accident. We will vigorously pursue all avenues to attain a reversal of this verdict.” Shares of the company’s stock plummeted 37 percent after its announcement of the verdict.
No, it is not quite July yet — even though I truly wish it was with all this cold weather the past couple of weeks in South Carolina — the Consumer Product Safety Commission (“CPSC”) is already anticipating next July. On December 8, 2010, the CPSC announced that four fireworks firms agreed to pay a $100,000 civil penalty for importing violative fireworks. The entire agreement can be viewed here [PDF].
Jake’s Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC, and Pacific Northwest Fireworks, Inc. are all in the business of putting fireworks into the stream of United States commerce. From December 2006 to September 2007, these companies imported over 200,000 fireworks that violated CPSC’s regulations at 16 C.F. R. Section 1500.17 (a)(3) and 16 C.F.R. Part 1507. Section 1500.17(a)(3) requires that fireworks that are intended to make an audible sound to contain no more than two (2) grains of pyrotechnic composition.
The fireworks imported contained more than the allowable limit, which could cause serious injury or death if they exploded at ground level. Not only did the CPSC impose a civil penalty, it ordered the destruction of these fireworks within six months of their final order. The CPSC will supervise the destruction but if these companies fail to destroy the subject fireworks within the allowable six months, they will be fined $5,000 a day, not to exceed $750,000 in one year.
With the Fourth of July less than 7 months away, it seems to us that the destruction deadline may be cutting it a bit close. However, with the possibility of a $750,000 fine, these companies will more than likely destroy the violative fireworks sooner than later, making it safe for next summer’s festivities.
