We here at Abnormal Use wish you and your family a very Merry Christmas. We may be cynical, but even we are not immune to those wistful moments of Christmas magic. Were you to send us a request to admit that Christmas is a splendid time of year full of fine sentiment and warm feelings, we could not in good faith deny it. But we’d probably throw in a token objection for vagueness just to preserve our street cred. Above, you’ll find the cover of Comic Cavalcade # 9, published way back in 1945 and featuring, once again, almost ancient versions of The Flash, Wonder Woman, and the Green Lantern. We’re a little distressed that those heroes appear to be breaking and entering a local home and usurping the duties traditionally reserved for Santa.

It’s Christmas Eve, and if you’re reading a products liability blog today, odds are you were the one associate or junior partner who couldn’t extricate him or herself from coming into the office today. We here at Abnormal Use would feel for you, but unfortunately for you, we wrote this post days ago and set it to automatically publish today before we headed off for the holidays.

By the way, depicted above is the cover of Christmas with the Super-Heroes #2, published in the late ’80s. Please note that Batman is staring intently at a teddy bear held by Green Lantern.

The question you have to ask yourself, though, is: Are you really going to do any billable work today, or are you going to play around on the Internet and read Christmas links?

We suggest the latter, and in that spirit, we present to you the following links:

• We still dig 1947’s Miracle on 34th Street, which is both a Christmas and a courtroom movie. Law nerds that we are, we are happy to see that the Wikipedia entry for the film includes a section dedicated to the film’s legal inaccuracies, which we quote here: “In the book Reel Justice, the authors claim that Judge Harper could have dismissed the case early without the political repercussions he feared. In their theory, once the prosecutor rested his case immediately after Kris Kringle admitted in court simply that he believed he was Santa Claus, Judge Harper could have ruled that prosecution had forfeited its opportunity to prove that Kringle was dangerous (the basic point of such hearings; Kringle’s actual mental state itself being irrelevant), and ordered him immediately released. However, this high standard for involuntary commitment was not instituted until 1975 with the U.S. Supreme Court’s decision O’Connor v. Donaldson.” Indeed.
• We hate those gooey holiday candies – peeps. So we direct you to the “100 Ways To Kill A Peep” blog which, sadly, is no longer being updated.
• The news here in merry Greenville is that it may actually snow on Christmas day. However, we fully expect to publish each day next week, barring some unforeseen snowpocalypse.

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2010, we published a total of eleven such interviews. Today, we list them all and provide links back to them:

• Rory Ryan, Baylor University (February 4, 2010)
• Michael J. Virzi, University of South Carolina (February 24, 2010)
• Mary J. Davis, University of Kentucky (April 27, 2010)
• Susan Rowe, Charlotte School of Law (October 4, 2010)
• Mark Osler, St. Thomas Law School (October 11, 2010)
• Mark Zaid, The Law Office of Mark S. Zaid, P.C. (October 18, 2010)
• David G. Owen, University of South Carolina (October 26, 2010)
• Alberto Bernabe, The John Marshall Law School (November 3, 2010)
• Stephen Spitz, Charleston School of Law (November 15, 2010)
• Phil Morris a/k/a Jackie Chiles (December 6, 2010)
• Jill Wieber Lens, Baylor University (December 13, 2010)

As 2010 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it.

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, we here at Abnormal Use thought we would add to that cacophony and list for you our favorite twelve posts of this past year – which was also our first year. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day this calendar year. Looking back over several hundred posts, it was difficult to choose only twelve. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date.

The Not-So Deep End (Kevin Couch, January 22, 2010). Our very first foray into the realm of television reviews. The program we reviewed, “The Deep End,” did not last. In fact, both this blog and that show debuted in January of 2010. We outlived the show!

What Does Society Demand from a Chicken Sandwich? (Kevin Couch, February 3, 2010). Our first truly irreverent look at products liability litigation. We have since learned that any posts having to do with hot chicken (or hot coffee) garner great attention. (We were particularly pleased the chicken sandwich post earned this link from How Appealing and this one from Overlawyered, two of our favorite law blogs).

A Modest Proposal: Abolish Strict Liability (Phil Reeves, April 7, 2010). Our first editorial, in which site author Phil Reeves argued for the abolition of an old products doctrine. That’s right; we’re not afraid to have an opinion. Don’t tread on us.

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds (Jim Dedman, April 1, 2010). Our first hoax, perpetrated, of course, on April Fool’s Day. We were pleased to report that we actually did fool a few people, despite the many clues indicating that it was all in fun. “Reasonable degree of confectionery certainty,” indeed.

A Can of Tuna A Day, Keeps The Doctor Away? (Mary Giorgi, May 10, 2010). Someone who ate a can of tuna a day sued claiming damages for eating a can of tuna day. We had to comment. Really, we did.

Our First Milestone: 100 Posts (Stephanie Flynn, May 18, 2010). Our first arbitrary celebration of an arbitrary milestone. Pensive as we are, though, we couldn’t resist. Blogging is, after all, an introspective medium designed for self indulgent self reflection. That’s what we here do best!

Live from Litchfield Beach (Dan Eller, June 7, 2010). If you had any doubts, this post is clear and convincing evidence that we blog even when on vacation.

Google Failed to Warn Woman Not to Walk into Oncoming Traffic (Laura Simons, June 22, 2010). Someone alleged that she walked into the highway traffic because she was blindly following directions taken from Google Maps. Um, okay.

Bluejays and Mockingbirds (Mills Gallivan, July 6, 2010). Our boss – senior partner Mills Gallivan – paused to observe the anniversary of the publication of Harper Lee’s To Kill A Mockibird and reflect on what that means to the legal profession as a whole.

Wii Class Action Strikes Out: Hang on to Your Controller (Frances Zacher, October 12, 2010). People who inadvertently toss their Wii controllers at there televisions, thereby damaging them, attempt to certify themselves as a class. We comment thereupon.

Thanksgiving in 1810, 1910, and 2010 (Jim Dedman, November 22, 2010). We dug up a forgotten magazine article from a long forgotten magazine. Writing in 1910, the author – a lawyer, no less – looked back a hundred years and commented upon the many changes that had taken placed and briefly wondered at the world of 2010. We responded, and in the process, received so many links and hits that we broke all of our site traffic records.

Views of 2011 From 1931 (Jim Dedman, December 14, 2010). We comment upon the predictions contained in a series of editorials published in The New York Times in 1931. The paper of record asked that day’s visionaries what they thought they year 2011 would look like. Some were surprisingly accurate; others, not so much. It became our most linked post of the year, and we saw huge, huge traffic as a result.

As a defense lawyer, I dream about preemption; it can bar a staggeringly wide range of claims. The plaintiffs in Gelber v. Stryker, — F.Supp.2d —-, No. 09-CIV-1322, 2010 WL 4740432 (S.D.N.Y. Sept. 14, 2010), however, do not view preemption so fondly. After Jeannette Gelber’s hip was replaced with a Stryker Trident hip, she began to have pain and noticed a squeaking sound when she walked. She was told the artificial hip was defective, and thereafter, filed suit. The defendants filed a motion to dismiss, and the plaintiff conceded the dismissal of claims based on failure to warn, improper labeling, improper or misleading marketing and/or defective design. Therefore, the only claims remaining in the defendants’ motion to dismiss were those of negligence, strict liability and breach of warranty claims based on alleged violations of the FDA’s manufacturing requirements.

And then, the defendants dropped the atom bomb: federal preemption based on the rigorous review the FDA had used in approving the Trident hip for use and distribution; in fact, as a so-called “Class III” device, the Trident hip had been subject to the “rigorous regime” of premarket approval (“PMA“) within the FDA, a process under which only 1% of devices were scrutinized in 2005:

The PMA process is lengthy-it takes over 1,200 hours to review each application-and involves the submission of volumes of comprehensive information on the device. The FDA only grants premarket approval if it finds there is a reasonable assurance of the device’s safety and effectiveness. After approval, the FDA still retains regulatory control over the device. The manufacturer is prohibited from changing “design specification, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness” without first obtaining FDA’s approval.

There is a way around federal preemption, and the plaintiffs tried it in this case: the plaintiffs claimed that the defendants violated FDA manufacturing requirements, a so-called “parallel” claim. Here’s how a parallel claim would work, in the Court’s opinion

Riegel [v. Medtronic, Inc., 552 U.S. 312, 316, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008)] specifically found that claims of strict liability, negligence and breach of implied warranty were expressly preempted. However, there is an absence of Supreme Court guidance on whether the [Medical Device Amendments of 1976] preempts state requirements of general applicability that only incidentally regulate medical devices, e.g., Uniform Commercial Code or unfair trade practice laws, since Riegel refrained from analyzing the exception provided by 21 U.S .C. § 808.1(d)(1). Riegel, 552 U.S. at 328-29 (” § 808.1(d)(1) can add nothing to our analysis but confusion…. Neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally[,] the regulation fails to alter … the outcome of this case”). Post-Riegel, courts have struggled to determine whether state-law claims that only incidentally regulate medical devices are still available insofar as they are “parallel” to federal requirements. . . . This Court finds it persuasive that since the Supreme Court did not carve out a safe harbor for state laws that only incidentally regulate medical devices, the same preemption analysis applies and only those claims that are parallel to federal requirements are permissible.

(internal citations omitted). This might have been a great argument for the plaintiffs, except that the court held that they did not sufficiently plead claims “grounded in violations of federal law and/or requirements.” The pleadings didn’t provide the requisite amount of factual detail and specificity to survive the defendants’ motion to dismiss and, therefore, the remaining claims of the plaintiffs were dismissed. Pesky pleadings. However, the Court stated that “because courts have only recently articulated how a plaintiff can successfully plead a parallel claim,” the plaintiffs would be allowed to replead.

• Depicted above is the cover of The Incredible Hulk #153, published way back in 1972. As civil litigators, we can’t say we know in detail all the various rules of criminal procedure which govern the sentencing of defendants. However, surely there must be one that could be invoked to allow the judge to sentence The Incredible Hulk in absentia to prevent the result shown above. The shackles they elected to use didn’t seem to do the trick.
• Jeffrey Kuntz of The Florida Legal Blog asks an interesting question: “Is It Proper To Cite To A Shortened URL in An Appellate Brief?” As Kuntz notes, there is a risk inherent in such citations, as the abbreviated link may itself expire, and if it does, there is no way to ascertain the nature or domain of the original link. Best to use the full URL, we think.
• Oh, boy, do we have a bone to pick with Stephen J. McConnell over at the Drug and Device Law blog. Writing about a series of four related court orders, McConnell strayed into popular culture and opined that “any rock band with four letters in its name will produce wretched music. Okay, we agree about Bush, Devo, Fuel, KISS, and TOTO, but AC/DC?! (There is massive disagreement here in Dechert-ville over ABBA, Rush, and Styx.).” We are aghast and agog. Where to begin? First off, Rush is a fine band as a matter of law. There can be no reasonable disagreement as to that fact (although the closest that one may come to creating a fact issue may well be the band’s 1991 album, Roll The Bones, which includes a pseudo-rap in the title track.). But as to McConnell’s more general statement about bands with four letter names, what about Beck, INXS, Muse, Nico (whose “These Days” is sublime), Pulp, Ween, Love (led by the late, great Arthur Lee), Luna, Lush and MGMT? Blur, Cake, Ride (who would inspire a band called Radiohead), RJD2, and Fear (the immortal Los Angeles punk band)? What about glam legend T. Rex and rap star Jay-Z? Sure, we’re torn about Ratt, Asia, Toto, and Seal, but Devo is sacrosanct. Earlier this year, we here at Abnormal Use were very excited to learn that Devo was to play a gig within 60 miles of our fair city, and we were crestfallen when that show was canceled due to an injury suffered by the guitarist. Alas.
• Funny Or Die has posted a new Jackie Chiles video titled “Jackie Chiles Knows The Internet.” You’ll recall that we here interviewed actor Phil Morris – who plays Chiles in the video and on “Seinfeld” back in the old days – here.
• Elsewhere in online video circles, Jon Stewart of “The Daily Show” has a little bit of fun with the reaction of the Consumer Product Safety Commission to news that Shrek souvenir glasses might contain cadmium. See here for that amusing clip.
• Don’t tell our managing partner, but we here at Abnormal Use may sneak out of the office a bit early today to see the Tron sequel. We were kids when the original came out in the early 1980s. The sequel gives us a chance to revisit that era in our minds and recall a time when we had never heard the terms “billable hours” or “document review.”

1931 was a long time ago, and few who live today can claim to remember it all too well. Just two years after the stock market crash of 1929, 1931 claimed Herbert Hoover as the President of the United States (which that year had 48 states). Movie monsters were the rage; Bela Lugosi starred in Tod Browning’s Dracula film and Boris Karloff did his star turn in Frankenstein. Cab Calloway recorded the classic “Minnie The Moocher” (and he was 49 years from performing it again in 1980’s The Blues Brothers). James Dean was born that year; so were William Shatner and Leonard Nimoy. That December, the first Christmas tree was placed at the construction site that would later become Rockefeller Center. The Lindbergh kidnapping was a year in the future, and the attack on Pearl Harbor – precipitating the country’s entry into World War II – was a full decade away.

It was a far different time culturally, socially, politically. The issue: What did the great minds of 1931 predict the rapidly approaching 2011 would be like?

There is actually an answer to that question.

Way back on September 13, 1931, The New York Times, founded in 1851, decided to celebrate its 80th anniversary by asking a few of the day’s visionaries about their predictions of 2011 – 80 years in their future. Those assembled were big names for 1931: physician and Mayo Clinic co-founder W. J. Mayo, famed industrialist Henry Ford, anatomist and anthropologist Arthur Keith, physicist and Nobel laureate Arthur Compton, chemist Willis R. Whitney, physicist and Nobel laureate Robert Millikan, physicist and chemist Michael Pupin, and sociologist William F. Ogburn. Since these guys all have their own Wikipedia entries so many decades later, they had to have been important for their time, right? Perhaps not a diverse lot, but it was 1931.

Ford, perhaps the most recognizable name to modern readers, set the tone of the project in his own editorial of prognostication:

To make an eighty-year forecast may be an interesting exercise, first of the imagination and then of our sense of humility, but its principal interest will probably be for the people eighty years on, who will measure our estimates against the accomplished fact. No doubt the seeds of 1931 were planted and possibly germinating in 1851, but did anyone forecast the harvest? And likewise the seeds of 2011 are with us now, but who discerns them?

We’re not certain why The Times chose to celebrate an arbitrary 80 years of existence. Whatever the case, the predictions are full of gems, so we encourage you to read the original articles (which, hopefully, The New York Times will unlock from its paywall as 2011 approaches). Today, we are just two weeks shy of 2011, so we must ask, how did some of these men fare in their predictions? Let us do as Ford suspected we would and measure their estimates against accomplished fact (at least as much as a humble products liability blog can do).

Dr. Mayo had this to say:

Contagious and infectious diseases have been largely overcome, and the average length of life of man has increased to fifty-eight years. The great causes of death in middle and later life are diseases of heart, blood vessels and kidneys, diseases of the nervous system, and cancer. The progress that is being made would suggest that within the measure of time for this forecast the average life time of civilized man would be raised to the biblical term of three-score and ten.

Dr. Mayo predicted the average life span in 2011 would be 70. He wasn’t far off. According to this post at the Centers for Disease Control and Prevention, it’s currently 77.9 years.

Interestingly, Keith warned of the coming perils of overspecialization in medicine:

Eighty years ago medicine was divided among three orders of specialists – physicians, surgeons, and midwives. Now there are more than fifty distinct special branches for the treatment of human ailments. It is this aspect of life – its ever growing specialization – which frightens me. Applying this law to The New York Times, I tremble when I think what its readers will find on their doorsteps every Sunday morning.

Any litigator who has ever attempted to secure a medical expert in an obscure field certainly understands the concerns espoused by Keith. All we can say is that Keith would probably not be pleased to see all the various branches of medicine that have arisen in the past eight decades. (But we here at Abnormal Use, as consumers of medicine, are pretty pleased about all the smart folks out there who know lots and lots about important fields and sub-fields of medicine.).

Ford, writing in 1931, just two years after the stock market crash, predicted that we as a nation might focus more on the intangibles of life than the bottom line:

We shall go over our economic machine and redesign it, not for the purpose of making something different than what we have, but to make the present machine do what we have said it could do. After all, the only profit of life is life itself, and I believe that the coming eighty years will see us more successful in passing around the real profit of life. The newest thing in the world is the human being. And the greatest changes are to be looked for in him.

Uh, okay. In these troubling economic times of ours today, we’ll just say, “No comment.”

Millikan observed:

Among the natural sciences it is rather in the field of biology than in physics that I myself look for the big changes in the coming century. Also, the spread of the scientific method, which has been so profoundly significant for physics, to the solution of our social problems is almost certain to come. The enormous possibilities inherent in the extension of that method, especially to governmental problems, has already apparently been grasped by Mr. Hoover as by no man who has heretofore presided over our national destinies, and I anticipate great advances for moving in the directions in which he is now leading.

Certainly, the scientific method has not solved all of our social problems (and Millikan would likely be displeased to learn how history now views President Herbert Hoover.).

Pupin was optimistic that workers would come to share in the profits of that they produced:

The great inventions which laid the foundation of our modern industries and of the resulting industrial civilization were all born during the last eighty years, the life time of The New York Times. This civilization is the greatest material achievement of applied science during this memorable period. Its power for creating wealth was never equaled in human history. But it lacks the wisdom of distributing equitably the wealth which it creates. One can safely prophesy that during the next eighty years this civilization will correct this deficiency by creating an industrial democracy which will guarantee to the worker an equitable share in the work produced by his work.

Er, not quite.

Compton predicted:

With better communication national boundaries will gradually cease to have their present importance. Because of racial differences a world union cannot be expected within eighty years. The best adjustment that we can hope for to this certain change would seem to be the voluntary union of neighboring nations under a centralized government of continental size.

Well, national boundaries are just as important as they were back in 1931. (And in fact, there have been a ton of wars in the past 80 years over just that issue). The United Nations would be formed fourteen years after Compton’s call for a “voluntary union of neighboring nations,” but its efforts and successes over the past 65 years have been, at best, a mixed bag. (Interestingly, Compton also predicted that China, “with its virile manhood and great nature resources,” would take “a more prominent part in world affairs.”).

Our favorite set of predictions, though, comes from Ogburn, who actually went out on a limb and made some bold predictions (some of which were dead on, other of which were not so much):

The population of the United States eighty years hence will be 160,000,000 and either stationary or declining, and will have a larger percentage of old people than there is today. Technological progress, with its exponential law of increase, holds the key to the future. Labor displacement will proceed even to automatic factories. The magic of remote control will be commonplace. Humanity’s most versatile servant will be the electron tube. The communication and transportation inventions will smooth out regional differences and level us in some respects to uniformity. But the heterogeneity of material culture will mean specialists and languages that only specialists can understand. The countryside will be transformed by technology and farmers will be more like city folk. There will be fewer farmers, more wooded land with wild life. Personal property in mechanical conveniences will be greatly extended. Some of these will be needed to prop up the weak who will survive.

Inevitable technological progress and abundant natural resources yield a higher standard of living. Poverty will be eliminated and hunger as a driving force of revolution will not be a danger. Inequality of income and problems of social justice will remain. Crises of life will be met by insurance.

…

The role of government is bound to grow. Technicians and special interest groups will leave only a shell of democracy. The family cannot be destroyed but will be less stable in the early years of married life, divorce being greater than now. The lives of woman will be more like those of men, spent more outside the home. The principle of expediency will be the dominating one in law and ethics.

Not too bad for a man born in 1886 who didn’t live to see 1960. Sure, he was off by about 150 million on the United States population for 2011. Sure, he didn’t predict the microchip or the Internet. Oh, and yeah, poverty hasn’t been eliminated and hunger is still a problem worldwide. But he generally seemed to understand the coming material leisure culture, the rise of big government, and the differences in the family unit in the world eight decades from his prediction.

Oh, and for the record, we here at Abnormal Use do not plan to use this occasion to make predictions about 2091, save for the lone augury that we here will still be toiling away at our desks in an effort to bring you fresh and insightful commentary each business day.

Bibliography

All of the articles listed below are linked and available online, but they’re also all behind The New York Times paywall archive. Unless you have access, all you’ll get is the abstract.

Compton, A.H. “Whole of the earth will be but one great neighborhood; Dr. Compton envisions the great development of our communications,” The New York Times, September 13, 1931.

Ford, Henry “The promise of the future makes the present seem drab; Mr. Ford foresees a better division of the profits to be found in life,” The New York Times, September 13, 1931.

Keith, Sir Arthur. “World we hope for runs away with the pen of the prophet; Sir Arthur Keith doubts if his individualist longings can be realized,” The New York Times, September 13, 1931.

Mayo, W.J. “The average life time of man may rise to the biblical 70; Dr. Mayo says also that a proper use of our leisure will be evolved,” The New York Times, September 13, 1931.

Millikan, Robert A. “Biology rather than physics will bring the big changes; Also, says Dr. Millikan, the scientific method will aid in government,” The New York Times, September 13, 1931.

Ogburn, William F. “The rapidity of social change will be greater than it is now; and hunger, says Dr. Ogburn, will not be a danger as a revolutionary force,” The New York Times, September 13, 1931.

Pupin, Michael. “Our civilization will create a new industrial democracy; it will give the workers a fair share in wealth, says Michael Pupin,” The New York Times, September 13, 1931.

Whitney, W.R. “Better world-wide education will serve our experiments, self-improvement is viewed by Dr. Whitney as the great task set for mankind,” The New York Times, September 13, 1931.