Consider the recent decision in White Elec. Servs., Inc. v. Franke Food Servs., No. 09-CV-0504-CVE–PJC, 2010 WL 1542575 (N.D. Okla. Apr. 15, 2010). The case arose from an underlying lawsuit brought by Sarah Austin against an electrical contractor, White Electrical Services, Inc. Austin alleged that she received an electrical shock when she attempted to plug in a food preparation table while working at McDonald’s. Id. at *1. White settled with Ms. Austin and then brought suit against Franke, the alleged manufacturer of the food preparation table. Id.

Finally, the court analyzed White’s claim for contribution and found that contribution “represents a sharing of joint and several liability by providing for proportional reimbursement from other parties who are liable to the plaintiff.” Id. at *3. Since there was at least a possibility that both White and Franke could have been jointly and severally liable to Ms. Austin, the court allowed for White’s contribution claim to go forward. The moral of this case is that practitioners must exercise caution when using seemingly synonymous terms in any document filed with the court.

Rather than describing the due process limitation on a state’s exercise of personal jurisdiction, “minimum contacts” may more accurately describe the interpersonal relationships of some of us at Abnormal Use. While relationships and the due process limits on personal jurisdiction may both be equally obtuse, only one can support a blog post. Alas, perhaps we can make some headway with personal jurisdiction.

The Colorado Court of Appeals recently found minimum contacts supporting personal jurisdiction in Etchieson v. Central Purchasing, LLC, No. 09-CA-0218, 2010 WL 1491642 (Colo. Ct. App. Apr. 15, 2010) [PDF]. Etchieson was injured when an electric meter exploded. As happens now in our globalized society, the defective product was manufactured outside of the United States by a Chinese company (“Precision”) with “no offices, employees, or facilities in the United States.” Id. The electric meter was purchased and sold among several companies before reaching the hands of the Plaintiff. Without going through a painful recitation of the facts, perhaps it is sufficient to say that Precision purposefully sold its product in the United States, but Precision did not “aim any advertising exclusively at Colorado and no Precision personnel ever visited Colorado.” Id. The trial court found these contacts insufficient to support exercise of the long-arm statute, but the Court of Appeals reversed.

The Colorado Court of Appeals discussed specific jurisdiction and Supreme Court precedent involving foreign corporations. At the risk of oversimplifying, the court of appeals reasoned that Precision purposefully manufactured its product for the United States market, and, because of that general availing of the broader market, Precision availed itself of the Colorado market. Moreover, specific jurisdiction was reasonable because “in the context of product liability, the limits on personal jurisdiction have been relaxed as trade has . . . globalized . . . and as modern transportation and communication have eased the burden of defending oneself in a distant state . . . .” Id. Therefore, personal jurisdiction is proper.

So what? How is this Plaintiff going to effectuate any judgment that he gets against a foreign company with no domestic assets? It seems a lot of this is driven by Colorado’s apportionment of liability statute, which does not permit recovery against any one tortfeasor in excess of the jury’s finding of liability. Moreover, a jury could consider the liability of any nonparty in the proceeding in its assessment of liability.

The Plaintiff, then 18 years old, was boating with friends on Lake Austin in the summer of 2005. He had just returned to the boat from wakeboarding when the tow rope fell in the water. When the Plaintiff jumped back in the water at the rear of the boat to retrieve the line, his friend and 18-year-old driver put the boat in reverse. The boat’s propeller caught the top of the Plaintiff’s leg and twisted it around, causing extensive blood loss and eventual loss of his leg. See local news coverage of the accident here .

The Plaintiff filed suit against the parent company of Sea Ray Boats, alleging that the boat should have been equipped with safety devices, such as guards or covers, to prevent the plaintiff from becoming entangled or stuck. However, the U.S. marine industry reportedly has fought the idea installing prop guards on motors because no design has ever been proven safe or effective for maneuvering boats. The U.S. Coast Guard has agreed, and has consistently refused to order boat and engine builders to install prop guards.

Apparently, though, this Texas jury didn’t buy it. It found both the Plaintiff and the driver (who was not named a defendant) of the boat each to be 17% negligent, and the defendant 66% negligent and responsible for the injury. Its award of damages included $200,000 for past physical pain and anguish, $200,000 for future physical pain and mental anguish, and $100,000 for disfigurement.

The decision has naturally drawn harsh criticism from the industry, which points out the common-sense factor at work here and the fact that all motors are “emblazoned” with pronounced warnings. It likens the facts on this case to the infamous McDonald’s hot coffee suit. This case, which Brunswick Corp has said it intends to appeal, may be one to watch, as it surely will have a profound effect on the boating industry.

Last week saw the release of a somewhat interesting personal jurisdiction case out of Texas. In that case, the seller of a milk truck was found not to have minimum contacts with the State of Texas, and thus, the district court did not have personal jurisdiction over it in the Plaintiff’s products liability action. See Mateer v. Cabool Lease, Inc., No. 2-09-297-CV, 2010 WL 1509691 (
Tex. App. – Fort Worth, April 15, 2010, no pet. h.) (not designated for publication).

The Plaintiff, a milk truck driver, suffered a severe hand injury after a 2006 valve accident while he was pumping milk into his trailer. Following his injury, he sued several entities, including Cabool Lease, Inc. (“Cabool“), the company that had sold the trailer at issue to Plaintiff’s employer, on the grounds that the trailer was defective. In response to the suit, Cabool filed a special appearance under Rule 120a of the Texas Rules of Civil Procedure in order to assert a personal jurisdiction challenge. The trial court sustained Cabool’s special appearance and the Fort Worth Court of Appeals, in an unpublished opinion authored by Justice Sue Walker, affirmed the trial court’s ruling and denied the Plaintiff’s interlocutory appeal.

The basic facts were not in dispute. In 1998, Plaintiff’s employer purchased the trailer at issue from Cabool, based in, of all places, Cabool, Missouri. The court noted that Cabool was a Missouri corporation with its principal place of business in Missouri. It did no business in Texas:

[Cabool] is not a corporate entity formed under the laws of Texas, and it does not maintain a registered agent for service in Texas. [Cabool] has no employees in Texas and does not regularly recruit Texas residents to work for [Cabool]; it does not maintain a place of business in Texas and does not have any offices or other facilities in Texas; it does not own any real or personal property in Texas; it does not maintain any bank accounts or post office boxes in Texas; it does not pay any taxes to any local or state taxing authorities in Texas; it does not market or ship any products to individuals or corporations in Texas; it does not operate a website in order to promote its business; it does not have a telephone number in Texas; it does not send sales or marketing brochures to people or corporations in Texas; it does not have company meetings in Texas; it does not purposefully advertise in or direct marketing efforts to Texas with an intent to solicit business from Texas; it does not advertise in any Texas newspapers; it has never before been involved in a lawsuit in Texas; and it has never had an occasion outside of this lawsuit to call anyone in Texas or receive phone calls from Texas.

Good jurisdictional facts for a defendant, those. Nevertheless, the Plaintiff argued that “ninety percent of [Cabool’s] business ha[d] consisted of leasing and financing equipment such as milk trucks and milk trailers to entities affiliated with [Cabool], such as [Plaintiff’s employer],” which, although also a foreign corporation, had significant Texas contacts. Further, Plaintiff pointed to evidence of a significant link between Cabool and his employer. For a number of years, Cabool leased to Plaintiff’s employer trucks and trailers for use in its facilities, including those in Texas, and Cabool continued to lease trailers to Plaintiff’s employer (who made up approximately 90 percent of Cabool’s customer base). Plaintiff also noted that Cabool’s president was also the president of Plaintiff’s employer, suggesting the closeness of the companies.

However, the appellate court found that “the trial court’s implied finding that [Cabool] had no contacts with Texas is supported by the special appearance evidence.” Although Plaintiff’s employer may have had contacts with Texas, it remained a third party, and the acts of a third party could not be attributed to Cabool, despite the fact that the two companies were closely associated. (The court specifically noted that there was no issue of piercing the corporate veil, and thus, Plaintiff’s employer’s contacts with Texas were not relevant to those of Cabool.). Accordingly, Plaintiff was left with no evidence of any contacts that Cabool had with Texas, ending the inquiry.

• Whew. We survived Tax Day yesterday. To celebrate, we direct your attention to the above video of George Harrison and Eric Clapton playing “Taxman” (from the 1966 Beatles album, Revolver) in Japan sometime, we suspect, in the early 1990s.
• Over at Osler’s Razor, law professor Mark Osler asks the age old question, “What should be required in law school?” A good question. (Incidentally, this coming Monday is Osler’s “Last Lecture” at Baylor Law School before he heads off to a new post at the University of St. Thomas Law School in Minnesota).
• We here at Abnormal Use love ABC’s “Lost.” We really do. We realize this makes us both law nerds and sci-fi nerds. SPOILER ALERT: This past Tuesday, on that show, Desmond Hume (Henry Ian Cusick) accelerated his vehicle in a school parking lot and crashed directly into wheelchair-bound John Locke (Terry O’Quinn). In Desmond’s defense, he may have done that just to awaken Locke to the notion that they are all living in a possibly sinister alternate reality, but that’s neither here nor there. In real life, though, Dr. Justin Sattin, Assistant Professor of Neurology at the University of Wisconsin School of Medicine and Public Health, has criticized the portrayal of the accident, claiming that the manner in which Locke reacted to the accident was not exactly accurate. Far be it for us to criticize the realism of a show about a magic island with time travelers. But when we watched that scene, the most unrealistic thing to us was the fact that 10 different Plaintiff’s lawyers didn’t show up with business cards immediately after the accident. (Hat tip: TV Tattle.).
• And finally, why do we never get trials like the one depicted below, in which Superman, apparently, is prosecuting Lois Lane for the murder of his former sweetheart, Lana Lang. (Note: Superman probably has one of those Lawyer as Witness ethical conflicts.). It seems Batman is defending Lane from the criminal charges. Click the image to enlarge.
Incidentally, in case you were wondering, that comic book is Superman’s Girl Friend Lois Lane #99, originally published in February 1970. No word on who actually won the trial.

In Tobaccoville USA, Inc., v. McMaster, No. 26799, 2010 WL 1439108 (S.C. April 12, 2010) the South Carolina Supreme Court heard a certified appeal in which the attorney general was in a discovery dispute with a tobacco company. The dispute stemmed from the attorney general’s assertion that various privileges applied to Tobaccoville’s request for documents. The actual documents themselves were not identified in the opinion. However, based upon the references to the Master Settlement Agreement (MSA), one can reasonably conclude that Tobaccoville was seeking disclosure of documents relating to either the MSA itself or documents relating to the underlying litigation that was resolved by the MSA. In 1998, South Carolina, like many other states, entered into the MSA with the tobacco companies to settle litigation brought by the states to recover health care expenses that were allegedly related to tobacco use.

The supreme court remanded the case to the administrative law court for a determination of whether the alleged privileged documents are indeed confidential communications pertaining to the underlying litigation. The court also relied upon a Southern District of New York case for the proposition that the similar documents between an attorney general and the NAAG were protected by the attorney-client privilege. See Grand River Enterprise Six Nations, Ltd. v. Pryor, No. 02 Civ. 5069(JFK)(DFE), 2008 WL 1826490 (Apr. 18, 2008 S.D.N.Y.). Coincidentally, or maybe not so coincidentally, Grand River is the same manufacturer of cigarettes at issue in Tobaccoville USA, Inc. v. McMaster. It appears that the administrative law judge will now have to perform an in camera inspection of the documents to determine whether the attorney-client privilege actually applies to the disputed documents.

On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.

In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”

The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.

Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium

Several weeks ago, we here at Abnormal Use had some fun with Mr. District Attorney #53, in which the title prosecutor performed a direct examination of a canine eyewitness during a criminal trial. Well, today, we turn to the following issue of that epic comic book series, Mr. District Attorney #54. Take a look at the cover pictured above (and click to enlarge) and you’ll see the bizarre contest that the District Attorney is engaged in with some nefarious criminal. At first glance, the fly on the sugar cube gambit seems puzzling, but upon reflection, it may be more effective than mediation in some cases.

We’re not certain whether to chuckle or wince at last week’s post at Change.org called “Friday Unwind: 5 Ridiculous Lawyer Ads.” Maybe we’ll just cry. (Hat tip: Overlawyered).

Finally, someone steps up to respond to allegations that the iPhone is not secure enough to serve as the communications device for lawyers. Ben Stevens, a practitioner in our neighboring city of Spartanburg, South Carolina, and author of The Mac Lawyer blog, offers his treatise on this topic in a post entitled “The Truth about iPhone Security.”

The South Carolina Women Lawyers Association’s Blog: The Briefcase has posted a transcript of South Carolina Supreme Court Justice Kay Hearn’s recent speech to the SCWLA’s Midlands Region chapter. It is entitled “Judicial Independence.”

Above the Law notes in a post this week that the 2010 graduating class of the University of South Carolina School of Law has it right with respect to its chosen class gift.

Eric Goldman over at the Technology and Marketing Law Blog summarizes and comments upon an interesting Fourth Circuit case, Robinson v. Wix Filtration Corp. L.L.C., — F.3d —, No. 09-1167 (4th Cir. March 26, 2010). At issue was the Plaintiff’s failure to respond to a motion for summary judgment; Plaintiff’s counsel indicated that their firm’s computer system suffered a viral infection which, among other things, caused them to temporarily lose their Internet domain name and access to their email addresses (which, in turn, meant that any electronic filing notices from the federal district court would not have been received by them, including notice of the filing of the summary judgment by the Defendant in that wrongful termination case). The Fourth Circuit found that the Plaintiff had no remedy in this situation, although the opinion did draw a strong dissent. The lesson: If you have computer problems, you’d better login to PACER and monitor your federal cases. Any other option is fraught with peril. (See additional news coverage of this opinion here.).

The Third Circuit has ruled that defective sperm is not the proper basis for a products liability suit. We are grossed out by this jurisprudence. (See news coverage here.).