The dangerous instrumentality doctrine is nothing new in products law. What is different about Florida’s doctrine, however, is that “it is the only state to have adopted this rule by judicial decree,” as noted by the recent case Salsbury v. Kapka, 41 So. 3d 1103 (Fla. Ct. App. 2010). Other states have held that the issue is one for the jury to decide.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor Susan Rowe of the Charlotte School of Law in Charlotte, North Carolina. The interview is as follows:

1. What do you think is the most interesting development in products liability or torts litigation of the last year?

The obvious one is the Toyota gas-pedal acceleration issue. Very recently, Toyota settled the Saylor lawsuit in California where a California Highway Patrol officer and three of his family members were killed in August 2009 when driving a Lexus ES 350 that crashed going about 100 mph. Also, last week, a California judge set a deadline of October 12 for parties to identify claims that are not currently part of the complaint in the multi-district litigation or those claims will be dismissed from the multi-district litigation. There are about 186 class action cases for economic damages based upon unintended acceleration in 39 states, including D.C. and Puerto Rico. Some claims allege a defect in the electronic engine control system, while others allege defects related to floor mat placement. Toyota says its investigations have never found any problems with the electronic engine control system. It will be very interesting to see how these cases are ultimately resolved and whether it will be proven that there was an electronic problem.

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 What rule or concept in modern products liability jurisprudence do you believe is the most outdated?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

Contributory negligence and assumption of the risk being complete bars to recovery in products cases are probably the most outdated rules since most jurisdictions have moved to comparative fault, which reduces a plaintiff’s ability to recover but is not a complete bar to recovery. I think comparative fault is more fair. For the few jurisdictions that retain contributory negligence and are concerned about moving away from it, I would probably change the rule to a modified comparative fault regime that requires that a plaintiff be less than or equal to 50 percent at fault in order to recover.

3. North Carolina retains the concept of pure contributory negligence. How does this affect products liability and torts suits filed in that state?

Yes, North Carolina does retain contributory negligence, which remains a complete bar to a plaintiff’s recovery in any tort suit in North Carolina. The doctrine of last clear chance also applies in North Carolina, but it is unlikely to help a plaintiff in a products suit because a manufacturer will rarely have a chance to avoid the injury to a plaintiff before she is injured. A North Carolina bill to change to comparative negligence recently failed to make it through the Senate.

Chapter 99B of the North Carolina General Statutes contains North Carolina’s Products Liability Act. This statute explicitly provides that contributory negligence applies in products liability actions and that there is no strict liability in products liability cases. Instead, plaintiffs must rely upon other causes of action such as negligence, unfair trade practices, misrepresentation, or warranty. The North Carolina Supreme Court has held that the defenses under 99B, including contributory negligence, apply to breaches of the implied warranty of merchantability regardless of whether negligence is also alleged, which is a bit unnatural that contributory negligence may bar recovery to a suit brought under the UCC where negligence is never alleged.

4. What advice would you give to lawyers practicing the field of products liability litigation?

I would say that lawyers should watch how jurisdictions approach the Restatement (Third) of Torts. Jurisdictions are beginning to use this Restatement some when deciding products cases. The Restatement (Third) retains strict liability for manufacturing defect cases, but tends to move toward negligence when deciding design defect and failure to warn cases. Under the Third Restatement, a design defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.” A failure to warn defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings.” Thus, the use of the terms “foreseeable” and “reasonable” lean more toward a negligence standard.

5. What federal or state court opinion has been the biggest surprise for you of late, and why?

I think the New Jersey Superior Court, Appellate Division decision in Kendall v. Hoffman-La Roche, Inc., No. A-2633-08T3, 2010 WL 3034453 (N.J. Super. A.D. Aug. 5, 2010) is interesting. In that case, the Appellate Division overturned a $10.5 million verdict for a plaintiff who developed ulcerative colitis after taking Accutane and remanded for a new trial. The trial judge initially prohibited Roche (the manufacturer) from using any numbers related to the number of incidences of IBD that developed in the general population as a way to show when Roche should have had signals that it needed to change its warnings. On the eighth day of trial near the conclusion of plaintiff’s case, the trial judge changed her mind and allowed the numbers to be used but issued a cautionary instruction to the jury, in part, that stated “[t]he comparison of a background incidence of . . . IBD, in the general population, to the reported incidence of IBD in patients taking Accutane, is not a scientifically accepted method of proving whether a particular product … acts as a trigger for, and, therefore, is a cause of a particular side effect.” She also sustained an objection by plaintiff’s counsel during defense counsel’s closing argument when defense counsel was going through Accutane usage numbers.

The Kendall court ruled that Roche had been prejudiced by the delay in allowing it to use the numbers and by the jury instruction and objection during defense counsel’s closing. The court also held that Roche could use the numbers not only to try and prove it acted reasonably in modifying its warnings, but also to disprove causation. The court based its reasoning on a similar decision by the same court that came out after the Kendall trial and before the appeal. In the prior case of McCarrell, Roche was never allowed to use the numbers. When McCarrell was retried, the jury returned a bigger verdict, so defendant’s use of the numbers may not be as helpful as one might think.

BONUS QUESTION: What do you think is the most humorous depiction of a torts lawsuit in popular culture, and why?

Above, you’ll find the cover of Batman #163, an issue published way back in 1964. We think that defendant Batman may have grounds for a motion for recusal of the the judge, but we doubt it will be granted. And if that’s the jury, we’d hate to see the venire panel.

Don’t forget: You can still nominate our fair site, Abnormal Use, for consideration in the ABA Journal‘s Top 100 Legal Blogs contest. But today is the very last day you can do so. The last day! See our earlier tongue in cheek plea for support here (which also provides instructions how to submit your nomination, which you know you want to do).

Blogger and Law Professor Alberto Bernade at The John Marshall Law School asks, “What’s with all the lawyer shows on tv?!” That, dear readers, is a question that we feel must be asked, especially in light of our recent reviews of the new legal dramas “Outlaw” and “The Defenders.” Just once, we’d like to see a television show in which the first year associates are enduring a harrowing week of document review. Or, perhaps, a program in which one junior associate’s problem of the week is a senior partner’s fondness for serial commas in a particular memorandum of law? Or an episode in which a first year associate’s biggest dilemma is how long it took he or she to draft an answer to a complaint?

Today sees the release of The Social Network, a film about the Facebook, a website. As the operators of a website, we here at Abnormal Use look forward to the day when Aaron Sorkin and David Fincher will craft a film about us. However, our contributor Kevin Couch insists that Leonardo DiCaprio play him in any such film, but we just don’t see it.

Apparently, there is a new law blog dedicated to legal productivity called, of all things, Legal Productivity. We’ll be checking it out. (Hat Tip: The Mac Lawyer).

Eric Goldman of the Technology and Marketing Law Blog has an interesting post on a new New York state case on the discoverability of deleted social networking profile data for impeachment purposes. Remember: Just because your Plaintiff has deleted those incriminating photographs and statements from their Facbeook profile, that doesn’t mean they’re gone forever, at least not yet.

Recently, the First Circuit affirmed the decision of the District of Massachusetts in granting manufacturer’s post-verdict motion to alter or amend judgment, reversing judgment entered upon a jury verdict, by applying the relation-back doctrine. Coons v. Industrial Knife Co., No. 09-1791, 2010 WL 3516849 (1st Cir. Sept. 10, 2010) [PDF]. Three years after William Coons (“Coons”) was injured by an industrial paper-cutting knife while on the job, he filed suit against A.F. Chapman Corporation who he alleged manufactured and distributed the the knife that caused his injuries. A year later, after pre-trial discovery, A.F. Chapman sought, and was granted, leave to file a third-party complaint against Industrial Knife, alleging that Industrial Knife was the manufacturer and distributor of the knife. Almost two years after filing his original complaint, Coons sought, and was granted, leave to amend his complaint to assert claims against Industrial Knife.

You may have seen some of the more shameless plugs on other legal blogs requesting your vote for the annual best legal blog contest. If you’re drawing a blank, allow me to educate you on this matter. Very recently, The ABA Journal requested input from the law blog, or blawg, reading public to generate its annual list of top legal blogs. (As one who nominates a blog to the 100 best legal blogs list, you are referred to by the ABA as “blawg amici.”). You can find the nomination form and related information here. Obviously, we here at Abnormal Use take our blogging quite seriously, and we would never condescend to overtly request that you tell the fair editors at The ABA Journal how awesome we are. In fact, we specifically request that, if you were so moved as to submit Abnormal Use to The ABA Journal, that you not say that we are simply a “great blog.”

That’s just our way here at this site, and for better or ill, we can be nothing but ourselves.

The new legal drama “The Defenders,” not to be confused with the superhero team of the same name, premiered last Thursday night on CBS. The premise: Nick Morelli (Jim Belushi) Peter Kaczmarek (Jerry O’Connell) are rough and tumble criminal defense attorneys practicing in Las Vegas. The two name partners are not alone. Joining them is brand new associate Jess Merriweather (Jurnee Smollett, formerly of the excellent “Friday Night Lights”), who is mercilessly mocked by a menacing assistant district attorney for having paid for law school through exotic dancing. Although the program maintains a silly charm, it harbors the same sorts of lawyer cliches and conventions that we’ve seen on network television for decades. Alas.

Belushi, in this clip , describes the two leads as “working class guys who passed the bar and have a great street sense how to figure out the angles.” They go out into the field the day before trial and find new evidence or formulate new theories which ultimately save the day for their previously doomed clients. They’re brash, they’re smug, and they delight in their refusal to play by the book. TV critic Alan Sepinwall curiously referred to them as “ambulance-chasing Vegas defense lawyers,” although there is no reference to them practicing personal injury law.

Here is what I learned about the practice of law from the program, and the top medical malpractice attorneys in Chicago shall also agree with the same:

As in all other television courtrooms, a lawyer can simply object by saying “Objection!” with some level of aplomb, and the court will rule thereupon. Presumably, this preserves error, as it happens so often on television without any ill effect.

At a charge conference, a defense lawyer can condescendingly yell at the judge, “You are wrong!” when a requested jury instruction is rejected.

Criminal defense lawyers, upon leaving said charge conference, advise their partners to handle the judge’s rulings as follows: “Screw him! Instruct them yourself!”

Prosecutors, rather than objecting, simply rise and scornfully ask “Judge, is there a question here?” when opposing counsel is querying a witness.

Judges, rather than ruling upon objections from the bench, say things like “leave the editorials for the papers.” (This is strange, too, because no one reads newspapers any more, right?)

First year associates are apparently already licensed on their first day at work, as they are left to fly solo at arraignments by partners too busy to accompany them.

Young male partners at criminal defense firms negotiate pleas by sleeping with ridiculously attractive and formidably ambitious female assistant district attorneys, and vice versa.

We’ve always dug Jim Belushi (especially in 1990’s Mr. Destiny), but we can’t say we’re too familiar with his modern television career, never having seen any of the 182 episodes of his sitcom, “According to Jim,” which apparently aired for eight years. O’Connell, for his part, we remember fondly from 1985’s Stand By Me, and his brief appearance in 1996’s Jerry Maguire, in which he did his own acoustic cover of Nirvana’s “Something in the Way.”

Let’s face the facts. Television writers are not lawyers. Their only legal education, so to speak, is watching the myriad awful television shows written by other television writers ignorant of legal practice and procedure. Thus, stereotypes and inaccurate portrayals are compounded and perpetuated indefinitely.

In the comic book cover above, World’s Finest #186, published in 1969, we learn that Superman may not be the biggest fan of the federal sentencing guidelines. Or the Eighth Amendment, for that matter.

Last week, we posted our review of the awful new television legal drama, “Outlaw,” starring Jimmy Smits. Just a few days later, the Above The Law blog published its own review of the first episode. Are we here at Abnormal Use now trendsetters?

John A. Day at the Day on Torts blog has a post entitled “Googling Potential Jurors,” in which he analyzes one trial court’s recent prohibition of Plaintiff’s counsel using Google in the courtroom to investigate those who might become jurors. On appeal, the appellate court rebuked the trial court for shutting down the searches. (See also this post at the Internet Cases blog for more on that same case).

David A. Oliver at the DRI Blog asks if we have now reached “The End of Toxic Tort Litigation in Texas?” That’s an often asked question, but Oliver has some new thoughts.

Lawyerist has this post on “How to Run Effective Meetings.” This should, perhaps, be mandatory reading for shareholders at firms across the United States.

Seattle Weekly offers its list of the seven best covers of Paul McCartney songs, with accompanying video. We might have included Stevie Wonder’s cover of “We Can Work It Out” (but perhaps that was influenced a bit too much by John Lennon to truly constitute a “Paul McCartney song.”).