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 third installment, we turn to law professor Mary J. Davis of the University of Kentucky College of Law. A products liability professor, she co-authored the products liability treatise, Owen, Madden and Davis on Products Liability. The interview is as follows:

1. What do you think is the most significant new development in products liability of the last year?

I think that the whole question of preemption continues to be the most significant new development in products liability in the last two decades and every time the Court decides a question, it is a significant new development. For example, when the Court found no implied preemption in the pharmaceutical labeling case, Wyeth v. Levine, in late 2009, that was a huge development given that the Court had been forecast to be friendly to preemption in that case and it was not. And now the Court is poised to answer another preemption case, Bruesewitz v. Wyeth, involving express preemption under the National Childhood Vaccine Injury Compensation Act. Any time the Court decides a preemption case, it’s a significant new development. Other than that, I think the Consumer Products Safety Improvements Act implementation is significant if only because the changes made in 2008 by the statute reflect a substantial re-focus on regulating product safety from the federal regulatory side.

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 What rule or concept in modern products liability jurisprudence is the most outdated?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

No or limited liability for successor corporations. Come on. You shouldn’t be able to sell your company to get out from under liability that can be established under applicable law at the time of the product’s sale no matter how much it might make business sense to try to avoid that liability. I would expand the product line exception so that if the company continues to sell the product, or any variant, liability will continue to apply to products sold by the predecessor.

3. Generally, how would you characterize the media coverage of products liability?

Extremely weak. I think top journalists do a good job; I have read good material in The New York Times, Wall Street Journal and Washington Post on the Toyota recall and litigation frenzy, for example. Generally, though, I think the media does not try to understand even the basic features of products liability, much less the nuances. I would like to see more time/pages devoted to explaining products liability law and the litigation system. The public needs it. I am personally often reluctant to talk to the press, however, and, when I do, the most ridiculous, out-of-context information comes through. It is difficult to use the media to give a civics lesson, but the media should be more interested in clarifying the public’s understanding of the legal system than it appears to be.

4. What advice would you give to lawyers practicing products liability in 2010. What should they be looking out for?

I have not practiced since 1991, so I should be asking your readers what advice they would give me in training lawyers who might practice products liability in 2010. I hope some of them will take me up on that. I would say, however, that lawyers who practice in federal court must understand Iqbal, the Supreme Court case that changes the face of pleading under the Federal Rules. Of course, state pleading requirements are not affected.

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

That’s a tough one because I just told you that I was surprised by Wyeth v. Levine, the pharmaceutical preemption case. I was also extremely surprised when the Supreme Court decided Altria Group, Inc. v. Good, which found that consumer fraud litigation against the tobacco companies was not preempted. Since the first tobacco litigation preemption case in 1992, Cipollone v. Liggett Group, the Court had gravitated toward a strict/text-based express preemption analysis advocated by Justice Scalia in dissent in Cipollone and subsequent cases, most recently Riegel v. Medtronic, Inc., a medical device preemption case. Many observers anticipated that perhaps Justice Scalia’s approach would prevail in Altria Group. It did not. The decision indicates a trend in favor of a more flexible approach to the search for congressional intent to preempt which the Court had employed before Cipollone. I suppose you can tell that I am a follower of the preemption cases. They are the single most important development in products liability since I have been involved in the field, as a litigator for 6 years and now as a professor for 19.

BONUS QUESTION: What do you believe is the most interesting depiction of a products liability lawsuit in popular culture?

I liked the movie about the whistleblower in the tobacco litigation, Jeffrey Wigand, even though I think it’s unfortunate that the only products liability movies are [those] about the allegedly unsavory actions of corporate defendants. I always thought that most products liability defendants didn’t deserve that reputation.

BIOGRAPHY: Mary J. Davis is the Stites and Harbison Professor of Law at the University of Kentucky College of Law. Her research focuses on products liability law. She joined UK Law in 1991 after six years of a litigation defense practice, predominantly in products liability, for the law firms of Womble, Carlyle, Sandridge & Rice in Winston-Salem, North Carolina and McGuire, Woods, Battle, & Boothe in Richmond, Virginia. She is co-author of the textbook Products Liability and Safety: Cases and Materials (6th ed. 2010) (including the annual case supplement and Teacher’s Manual) with Professors David Owen and John Montgomery of the University of South Carolina School of Law. She is also a co-author of a multi-volume products liability treatise, Owen, Madden and Davis on Products Liability. Professor Davis is a 1985 magna cum laude graduate of the Wake Forest University School of Law and a 1979 cum laude graduate of the University of Virginia. She is also a member of the American Law Institute since 2001 where she serves on the Members Consultative Groups for the Restatement (Third) of Torts, Products Liability, and Aggregate Litigation Projects.

Today, Abnormal Use continues its new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the second installment, we turn to law professor Michael J. Virzi of the University of South Carolina School of Law. Virzi, a former prosecutor with the South Carolina Office of Disciplinary counsel, now teaches legal writing and chairs the South Carolina Bar’s Ethics Advisory Committee. He also practices in the areas of ethics and malpractice defense. The interview is as follows:

1. What recent developments in ethics law would you recommend that litigators be aware of in 2010?

Subpoena practice. Abuse of subpoena rules has been rampant for decades and, although there have been no rule changes, there has been increased awareness by the bench and attention to the limitations. The problem stems from the jurisdictional limits on a court’s subpoena power. A subpoena is essentially a court order. It is issued by the court; lawyers are merely granted the privilege of issuing them on behalf of the court. The abuse has been in issuing subpoenas outside the court’s jurisdiction. A lawyer cannot issue a subpoena that the court itself would have no jurisdiction to issue. The jurisdictional limit of the Circuit Courts is the State of South Carolina. Nevertheless, many lawyers will subpoena an out-of-state non-party entity (e.g., a bank) rather than an in-state representative. For Magistrate’s Court, the jurisdictional limit is the county in which the court sits. Nevertheless, lawyers often improperly subpoena out-of-county witnesses in Magistrate’s Court cases. The problem is particularly pronounced in City Courts—like Columbia, West Columbia, and Cayce—that neighbor county lines, but it has been reported in remote, rural areas as well. Finally, both Magistrate’s Courts and Family Courts have more limited subpoena power than Circuit Courts, as both courts lack extensive discovery procedures.

Specific Magistrate’s Court procedures were recently promulgated to clarify the appropriate way to reach out-of-county parties. Significantly, however, the rules and limitations did not change; they were merely clarified. A Magistrate’s Court’s jurisdiction—and therefore its subpoena power—has always been limited to the county in which the court sits. The disciplinary authorities have been aware of this for years, and the bar is starting to catch on.

2. What is the most significant ethics opinion to come out in the last year? Why is it significant?

The December 21, 2009, In the Matter of an Anonymous Member of the South Carolina Bar opinion by the South Carolina Supreme Court involved a lawyer issuing discount coupons through the lenders and real estate agents who referred business to him. The agents were soliciting clients in-person for the lawyer, something the lawyer himself is prohibited from doing under Rule 7.3(a). In 2007, Ethics Advisory Opinion 07-09 had advised that such conduct would be impermissible under 7.3(a), even though the lawyer personally does not conduct the in-person solicitation, because Rule 8.4(a) prohibits a lawyer from violating any of the Rules of Professional conduct “through the acts of another” and from “assisting or inducing another to do so.” The Ethics Advisory Committee believed that 8.4(a) prohibited a lawyer from having a surrogate solicit clients in person where the lawyer may not do so according to Rule 7.3(a).

The Court in In the Matter of an Anonymous Member of the South Carolina Bar expressly overruled 07-09, stating that the policies underlying the in-person solicitation prohibition are not compromised where the lawyer is not personally present. Because there is no “insistence upon immediate retention or importuning of the trained advocate,” in-person solicitation through a surrogate is not prohibited. The reasoning is simple, but the consequences are profound. The court essentially held that the “vicarious misconduct” prohibition of 8.4(a) does not apply to 7.3(a). The court has never previously held any of the Rules exempt from 8.4(a), nor am I aware of any other jurisdiction having done so. The court’s reasoning applies equally to ambulance drivers, triage nurses, police officers, jailers, and any other party a lawyer might use to personally solicit clients by handing out business cards or coupons in the lawyer’s stead. The court held that whether the recipient is in need of legal services is irrelevant. Because the practice is “similar in fashion to the common practice of leaving business cards for distribution” and the agents are not under the lawyer’s control (they “could have thrown away the coupons”), the court found the agent-solicitations permissible.

3. What do you think is the most overlooked ethical rule? Why is it overlooked?

Probably 7.2(b), or at least its applicability to electronic media. 7.2(b) includes the filing and record-keeping requirements for all lawyer advertising. Too many lawyers fail to realize that their web sites constitute advertising under the Rules and therefore fail to conform their sites to the specific prohibitions regarding advertising. Even when the content of online information is in conformity with the remainder of Rule 7.2, too many lawyers fail to file the materials with the Commission on Lawyer Conduct and keep copies for two years “along with a record of where and when it was disseminated” as required by 7.2(b).

4. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

Despite all the hype about how the Rules of Professional Conduct need to “catch up” with technology, I think the rules are adequate and state disciplinary authorities will simply apply them as written to online communication. I think lawyers, one by one, will continue to be shocked and amazed that their online conduct is measured against Rules 7.1 (communication), 7.2 (advertising), and 7.3 (solicitation), but regardless of the forum or medium, communicating is communicating, advertising is advertising, and soliciting is soliciting. The rules make no distinctions between print, radio, or television, and they need no special provisions for the Internet or other media. The rules distinguish only between that which is “disseminated via public media” and that which is not. If your use of Facebook is kept private among your friends, it’s not publicly disseminated. If you allow it to be viewed publicly, then it’s disseminated. Anything searchable by public search engines like Google and Yahoo! is disseminated under the rules. Linked-In and Twitter are likewise publicly disseminated. That doesn’t mean lawyers can’t use these services; it just means they are regulated when used in relation to the lawyer’s practice, as opposed to being used solely in a lawyer’s personal life.

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

To paraphrase Polonius (Hamlet, Act I, Scene III), “Above all else, to thine own self be true.” Never let any partner, associate, client, opposing counsel, judge, or anyone else talk you into doing something you think is wrong. Never be afraid to walk away. Your fears and your needs can quickly and easily become someone else’s power over you, and those who would wield that kind of power would never wield it in your best interest.

BONUS QUESTION: What do you think is the best depiction in popular culture of an attorney facing an ethical issue?

I really enjoyed Jim Carrey’s performance as Fletcher Reede in Liar Liar. Fletcher’s son cast a spell on him, prohibiting him from lying just before Fletcher was to represent a client in her divorce hearing. He knew his client was having an affair, which would trigger a clause in her prenuptial agreement prohibiting her from receiving any of her husband’s multi-million-dollar estate. The spell prevented Fletcher from examining her or the paramour without disclosing the affair. (Ignore for a moment that he was perfectly willing to allow his client to lie on the stand — arguably, he never “faced” that issue). At one point he objected to certain testimony, the judge asked why, and Fletcher responded, “Because it’s devastating to my case!” But his best effort was at getting a continuance until after the spell was broken, which he could not truthfully tell the judge he needed. To get the continuance without lying, he went into the bathroom and beat himself up. When the judge asked who had done it, Fletcher replied, “A madman, your honor, a desperate fool at the end of his rope.” Nevertheless, the ploy failed. The best part was watching Fletcher struggle to find an honest, truthful path to victory in the case. Ultimately, he discovered that his client had lied about her age in order to get married early, a revelation that also voided her prenuptial agreement for incapacity and entitled her to half of her husband’s estate despite the infidelity.

BIOGRAPHY: Mr. Virzi teaches Legal Writing at the University of South Carolina School of Law and practices in Columbia in the areas of ethics and malpractice defense. He formerly worked as Assistant Disciplinary Counsel for the Supreme Court of South Carolina. He graduated cum laude from the University of South Carolina School of Law in 2000. He is a member of the North and South Carolina Bars and is currently the Chairman of the South Carolina Bar’s Ethics Advisory Committee. In 2009, he served on the South Carolina Bar Young Lawyers Division Social Media Task Force.

Today, Abnormal Use inaugurates a new series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the first installment, we turn to friend of the blog and law professor Rory Ryan, currently a member of the faculty at Baylor Law School in Waco, Texas. He teaches courses in Federal Courts, Civil Procedure, Appellate Procedure, and Constitutional Law. Professor Ryan was kind enough to answer the following questions (and even provide his own external links embedded into his responses). The interview is as follows:

1. What should attorneys practicing in federal court be aware of as we enter 2010?

Three things:

(1) True notice pleading, as it seemingly existed a few years ago is dead. Become an expert in how your jurisdiction has interpreted the Twombly/Iqbal pleading standard, which is sometimes described as “Plausibility Pleading.”

(2) The Federal Rules have been “Restyled,” so pay attention to the new words (which aren’t supposed to have a different meaning);

(3) Major jurisdiction and venue legislation is pending. The Federal Courts Jurisdiction and Venue Clarification Act of 2009 is too varied and nuanced to even highlight in this space, so I’ve attached the Section-by-Section Analysis from the Office of Legislative Affairs and the Administrative Office of the U.S. Courts.

2. What is the most significant federal appellate court opinion to come out in the last year?

Ashcroft v. Iqbal from the Supreme Court, which solidifies that Twombly really did change the law. It has caused quite a stir both in the academy and among practitioners. And even for those who practice primarily in state court, it will be of interest to observe how many states follow the Supreme Court’s new rule. (I would call it an interpretation, but I just can’t bring myself to do it. The Court changed the law, and basically did so in a way that made the forms in the FRCPs fail the test set out by the rules. There’s a process for amending the Civil Rules—and that process involves Congress.)

3. What was the biggest surprise from the last U.S. Supreme Court term?

Citizens United, which was decided this term (in a mere 183 pages) but was carried over from last term. Maybe President Obama and Justice Alito need a beer summit to discuss the decision.

4. What advice would you offer to lawyers practicing in the area of products liability?

Read the following blogs: Drug and Device Law, Mass Tort Litigation Blog, and of course, Abnormal Use (this is where you add this blog to your RSS reader, (or learn what an RSS reader is and then add it.)) Also, learn everything you can about an important forum-selection tool you probably ignored in law school—fraudulent joinder.

BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.