One of the more interesting problems in products law is how to handle the middle man. If the retailer does not design or manufacture a product, but merely stocks its shelves, can he be liable to a plaintiff who is injured by the product? Different states handle the question differently.

Since the 1990s, EIFS litigation has been a thorn in the side of the construction and insurance industries. Improper installation of EIFS (Exterior Insulation and Finishing System), sometimes called “synthetic stucco,” on homes across the United States resulted in a tremendous amount of litigation. Class action suits and individual litigation have been plentiful, with defendants often pointing the finger at each other as they ferret out responsibility for who must pay for the damages.

The Texas Supreme Court recently weighed in on some of these issues in Fresh Coat, Inc. v. K-2, Inc., —S.W.3d —-, No. 08-0592, 2010 WL 3277130 (Tex. August 20, 2010). The Court addressed the duty of a synthetic stucco manufacturer to indemnify a contractor that installed the stucco against claims of more than 90 homeowners who sued for structural damage, termite problems, and mold. The defendants settled the litigation with the homeowners, and the case proceeded to trial on the various claims that the defendants brought against each other. The jury awarded judgment to the contractor, Fresh Coat, for all damages requested against the manufacturer, K-2, Inc., which included indemnification for settlements that Fresh Coat made to the homeowners and to the homebuilder. The intermediate court of appeals in Beaumont affirmed the decision, with the exception of the amounts that Fresh Coat paid to the homebuilder. Both K-2, Inc. and Fresh Coat appealed.

In its appeal, K-2 urged the Supreme Court to rule that Fresh Coat, as a contractor for the installation of the synthetic stucco, did not qualify as a “seller” and that EIFS is not a “product,” such that K-2 would not have indemnity obligations arising under Chapter 82 of the Texas Civil Practices and Remedies Code. K-2 claimed that products placed into the stream of commerce and integrated into a house are transformed into real property and no longer retain their status as “products.” The Court disagreed, holding that a product is something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption. Here, EIFS was a synthetic stucco system made of component parts manufactured by K-2, that it was placed into the stream of commerce, and it was used in construction of homes.

K-2 further argued that Fresh Coat, as a contractor that obtained and installed EIFS, was not a seller. If Fresh Coat could be characterized as a service provider only, K-2 would not have a statutory requirement to indemnify. The Supreme Court held that Chapter 82’s definition of “seller” neither excludes a seller who is also a service provider nor requires the seller to sell only the product. The Court commented that its approach was consistent with the Third Restatement of Torts, which recognizes that a product seller may also provide services. As Fresh Coat provided the EIFS system and the services to install it, Fresh Coat qualified as a seller.

The Texas Supreme Court also ruled that the manufacturer’s statutory obligation to indemnify covers a settlement payment made by the contractor to the homebuilder, even where the contractor was independently obligated by contract to indemnify the homebuilder. The only exception under Civil Practices and Remedies Code Section 82.002(a)) to a manufacturer’s duty to indemnify sellers for losses arising out of a products liability action is for losses caused by the seller’s negligence, intentional conduct or other act or omission for which the seller would be independently liable. Because Fresh Coat made itself independently liable by contract, K-2 contended that it should not have to indemnify it. The Court held none of the statutory exceptions applied, leaving the manufacturer to bear the full loss.

An important reminder: When Plaintiff’s counsel attempts to inject prejudicial statements into litigation, object. A failure to do so can be perilous indeed. In Wicklund v. Pacific Cycle, L.L.C., No. 08-CV-486-GKF-FHM, 2010 WL 3368924 (N.D. Okla. August 23, 2010), Judge Frizzell of the Northern District of Oklahoma considered whether repeated references by the plaintiffs’ attorney to the Chinese origin of the alleged defective product, a bicycle, was grounds for a new trial or relief from judgment. Counsel for the defendant, Pacific Cycle, argued that the plaintiffs’ attorney “repeatedly, deliberately and impermissibly played to the perceived anti-Chinese prejudice of the jurors, thereby irrevocably tainting the verdict.”

Above, you’ll find the cover for Superman’s Pal, Jimmy Olsen #28, published way back in 1958, which depicts Jimmy Olsen as “The Boy Who Killed Superman.” Note that he is in a police line-up, presumably for identification purposes, though the police officer is already presenting the evidence against him. (We love that there is a label tied to a piece of Kryptonite noting that it is “Exhibit B,” even though Olsen has yet to be identified, much less indicted or brought to trial.). We’ll leave it to the criminal lawyers to opine on whether the officer’s asking “Where have you hidden [Superman’s] body?” constitutes a custodial interrogation. However, this being 1958, Jimmy would not yet have been afforded many of the protections fashioned by the Warren Court. Oh, well.

Speaking of comic books, after months and months of commenting upon silly and fun superhero/courtroom comic book covers in our Friday Links posts, we now learn that the Ivy League has taken an interest and created an exhibit on that very subject. Earlier this month, our friends at the Yale Law School Library debuted the exhibit, “Superheroes in Court! Lawyers, Law and Comic Books,”which is curated by Mark S. Zaid. If you find yourself in Connecticut, you must see this exhibition, which runs until December 16, 2010 . See here for some official information on the exhibit, including a handful of covers, some of which even we here had not previously seen. (Thanks to eagle eyed reader Ryan Steans for bringing this New York Times piece on the exhibit to our attention.).

Man, the Wall Street Journal Law Blog beat us to the punch with the Rolling Stones allusion in their piece on the Ninth Circuit’s striking down of a municipal tattoo parlor ban. South Carolina is no stranger to such issues, as it banned tattoo parlors until 2006, when the 36 year old prohibition, which had survived a constitutional challenge in the courts, was repealed by the legislature. For more on the Ninth’s Circuit’s recent ruling, see here, here, and here.

The Evidence Law Prof Blog analyzes a recent North Carolina case regarding the authentication of emails, still a hot topic, even after all of these years of email use.

Civility seems to be the issue of the week. The DRI Blog has a piece by Brett A. Ross entitled “Professionalism: It’s not Just for Kids Anymore,” in which the author notes that “as mature practitioners, we should know better how to respond to bad behavior by our opponents even though it often seems that is not the case.” Meanwhile, Lawyerist has “Are You Civil With Opposing Counsel?,” in which the author’s advice is “Stick to your guns and keep it civil. It will pay off in the long run.” And our pals at Overlawyered have this post, in which they analyze a recent scolding of uncooperative counsel by a U.S. Magistrate.

Yesterday, Kevin Couch, one of our intrepid bloggers at this site, posted his review of the new Jimmy Smits legal drama, “Outlaw.” Apparently, the show is about a U.S. Supreme Court Justice, played by Smits, whose frustration with the system causes him to resign his seat on the Court and go about righting wrongs and correcting injustices in the trenches. (It seems he was in a pretty good position to do that on the U.S. Supreme Court, but oh well, it’s television.). Our thought: It would have been much more interesting had this series been a direct sequel to “L.A. Law” and Smits was playing his old character Victor Sifuentes, who had somehow managed to make it all the way from Los Angeles to the nation’s High Court. Another potential benefit of that approach: Susan Dey cameos.

Finally, we learned this week that Bob Dylan, the immortal folk singer, the voice of his generation, will be playing a concert later this year in nearby Clemson. We’ve seen him before and walked away unimpressed, so we leave you with a piece from Seattle Weekly, entitled “Top 7 Reasons to Walk Out of a Bob Dylan Show.” (Full disclosure: we adore our CD of the 1966 “Royal Albert Hall” concert, but that show was some time ago.).

Apparently, and unfortunately, NBC is determined to reboot its fateful 1980s series, “Knight Rider,” in the form of a new legal drama. You heard me right. Today, we here at the legal blog Abnormal Use review NBC’s new television show“Outlaw,” a heavy handed new lawyer show which premiered last night. As a series, it takes the aforementioned “Knight Rider” formula (unfortunately the 2008 version) and attempts to apply it to a would-be legal series. Sigh.

Before I lose the readership in this comparison, allow me some introduction and factual development. “Outlaw” is one of NBC’s attempts to return to scripted programming after “The Jay Leno Show” debacle. I was a bit skeptical of the premise when I read that Jimmy Smits portrays “former Supreme Court Justice Cyrus Garza, a playboy and a gambler who always adhered to a strict interpretation of the law until he realized the system he believed in was flawed.” But there’s always hope, however naive, that NBC will come up with a decent legal drama before the “Law and Order’ concept becomes too worn.

Here’s the plot summary: Cyrus Garza is “arguably the most conservative justice” on the Supreme Court. Cyrus has a problem because he feels like he has let down his dear old dad, a recently deceased lawyer-activist who championed liberal causes. After a one night stand with an twenty-something ACLU member, Cyrus realizes that conservatism is innately wrong, and before resigning his appointment, he grants a new trial to a convicted cop killer. Cyrus joins a law firm (at which Jan from “The Office” is the managing partner) and assembles a team who will fly all over the country righting wrongs perpetrated by our justice system. Cyrus then becomes the head lawyer on the defense team of the cop killer. His team discovers evidence not presented at trial establishing that the dead cop’s husband actually killed the cop. I will affirm that I in no way have embellished the plot. If this were not enough, Cyrus owes his bookie $250,000 and will have to pay at some point during the next three months.

Here’s the deal. As you can tell from my summary, the premise of the show is absurd. But as we’ve noted before, real life law practice can be pretty boring, so I’m not asking the show to be real. Legal Knight Rider though, is a bit much. The dialogue beats you over the head with the idea that Cyrus is sick of preserving a justice system at the expense of the innocent. He actually says things like “I’m hurting the people that I should be protecting.” By the end of the show, after Cyrus and company free the innocent man, it’s clear that “one man can make a difference.” The absurdity of the premise will likely mean the end of the show. Cyrus had his epiphany in episode one. He is now a crusader, a man of great moral fiber. What is left to do now? There’s no internal conflict in the protagonist. Trying to give Cyrus instant depth works against the longevity of Outlaw. And it promotes the same hackneyed legal plots. Moreover, there is no sense that there will ever be any real characters other than Cyrus. He has three lawyers and a private investigator that work under him, but the characters all seem a bit fungible. It’s possible they were cardboard cutouts, or to be less harsh, merely extensions of Cyrus himself, since even this champion of the people can’t be in two places at once or carry on an extended dialogue with himself. I would not be surprised if, at some point in the future, we discover that Cyrus has an evil twin, allowing Cyrus to carry on conversations with evil Cyrus. This would ensure that we all know that Jimmy Smits is the main character on the show.

From a legal standpoint, do you think there is anything questionable about the judge who essentially overturns a murder verdict becoming a lawyer for the criminal defendant? The show also asserts a stale take on jurisprudence, namely, that the court is not really an actor in our legal system. You kind of get the feeling that, without Cyrus preaching about the real meaning of justice, the judiciary would sit around for the next few years, throwing their hands in the air, not knowing what to do about all the terribly conservative legal precedent, and let a lot of innocent prisoners be executed. Thankfully, there is the Outlaw, who I presume to be Cyrus. Now judges everywhere will be able to take some steps to move our system forward. Yet again, one man can make a difference. The passivity attributed to the judiciary is too much. It takes the form of powerlessness rather than stare decisis. I don’t know anyone who thinks that the judiciary is powerless. But apparently Cyrus does, because after all, he quit his lifetime appointment on the world’s most powerful court to dispense some real justice.

That being said, this show isn’t nearly as bad as the freshman lawyer drama, “The Deep End.” To be reminded of why that show lasted 5 episodes or so, please revisit our initial review of that show here. But “Outlaw” isn’t really that good either. It’s obvious that NBC is depending on Smits‘ star power to carry the show. In fact Smits‘ bio on the cast page recites the phrase “critically acclaimed” about Smits or his prior work six times. Notice I said prior work. Will Smits enjoy the same success as had by Joe Mantegna, who spurred CBS’s 2002 Supreme Court drama, “First Monday” to an amazing 4-month, 13-episode run? Only time will tell. Meanwhile, I hope the writer’s will immediately begin to add something to this so-far bland show.

The pilot episode of Outlaw aired at 10 p.m. EDT on NBC. The episode was written by John Eisendrath and directed by Terry George. The cast includes Jimmy Smits (Cyrus Garza), David Ramsay (Al Druzinsky), Ellen Woglam (Mereta Stockman), Carly Pope (Lucinda Pearl), and Jesse Bradford (Eddie Franks).

We here at Abnormal Use believe that Superman may have an Eighth Amendment claim against Batman based on the conduct depicted above on the cover of World’s Finest #145, published way back in 1964. Of course, that assumes that the Man of Steel can establish that Batman is, for the purposes of his warden duties, a state actor. Can he do so?

“I’ve found, what my clerks do now, when they have interesting cases — They read blogs,” Anthony Kennedy, Associate Justice of the U.S. Supreme Court, August 19, 2010. (Hat tip: The Volokh Conspiracy). Now our hopes are up for a Supreme Court citation.

The Wall Street Journal Law Blog alerts us to the fact that the Burning Man music festival has its own barrister. What about Bonnaroo, though?

If you thought law school was insufficiently wearisome, you might investigate Texas Tech University’s new joint J.D./M.D. program, which the Tex Parte Blog profiled here.

Eric Goldman of the Technology & Marketing Law Blog ponders the Texas Attorney General’s probe of Google’s search engine practices.