Disclaimer: Do not Google “dental fluorosis,” for as with every Google Image search, you are bound to discover the most graphic examples, which in this case aren’t pretty. Earlier this month, the Fourth Circuit Court of Appeals affirmed a Maryland district court’s dismissal of a case against Nestle, Dannon, and Gerber involving dental fluorosis. See Nemphos v. Nestle Waters North America, Inc., et al, No. 13-2146 (4th Cir. Jan. 8, 2015). Michelle Nemphos, as legal guardian of her child, brought suit against these defendants for allegedly giving her daughter dental fluorosis.  According to the complaint, the plaintiff’s daughter consumed Nestle’s infant formula and Poland Spring water, Gerber’s baby foods and apple juice, and Dannon’s Fluoride To Go bottled water. According to the CDC, dental fluorosis occurs when young children consume too much fluoride over long periods when teeth are still developing under the gums.  The effects can range from barely noticeable white spots (okay, you can click that one) to pitting.  Once the teeth erupt through the gums, they will no longer develop D.F., and apparently, once a child reaches eight years of age, that child can no longer develop D.F.  The CDC warns of several common sources including, as the title stated, toothpaste, if swallowed, and water and processed beverages, which can account for up to 75 percent of fluoride intake.   Among the numerous recommendations proffered by the CDC include labeling the fluoride concentration of bottled water, as such labeling would allow consumers to make informed decisions.

So what does the FDA say about fluoride in bottled water?  According to the FDA’s science wizards, like these two obviously candid scientists, the amount of fluoride in bottled water varies from .8 to 2.4 milligrams per liter of fluoride.  One of the factors used by the FDA in determining the acceptable amount of fluoride in bottled water is the annual average daily air temperature at the location where the bottled water is sold.  See why I called them wizards? The FDA does not require bottled water manufacturers to list the fluoride content on the bottle, but it does require fluoride additives, if used, to be listed.  In 2006, the FDA approved this labeling: “Drinking fluoridated water may reduce the risk of tooth decay.”

With respect to Ms. Nemphos’s case, the district court found that if it were to grant the relief sought by Ms. Nemphos, it would require the defendants to maintain fluoride levels below the FDA’s established limits (which again were set by stock photo wizards) or to contain warnings not required by the FDA. Ms. Nemphos argued her failure to warn and misleading marketing claims against Nestle and Dannon were not preempted by federal law.  To its credit, the Fourth Circuit made their its thorough history of food packaging and labeling as interesting as possible.  Essentially, the Fourth Circuit found that the Nutrition Labeling and Education Act of 1990, which contains the national uniform nutrition labeling provisions, forbids states from establishing any requirements that are not identical to federal requirements in five areas of food labeling, including “standard of identity.” Reduced to its essence, federal statutes convey significant powers to the FDA to regulate food safety. This statutory charge reflects the all-around benefits of uniform food labeling. One of the FDA’s crucial tools in its regulatory effort is the standard of identity.

Regarding the other products, the Fourth Circuit brushed off Ms. Nemphos’s argument in a much briefer fashion, stating “Nemphos’s concern thus involves the failure to warn that fluoride—even at permissible levels, without any addition by manufacturers—may contribute to causing dental fluorosis over time.”

At Abnormal Use, we encourage those over the age of eight to brush their teeth and drink water, so long as the average daily temperature where you live fits the FDA’s guidelines.  Also, if you swallow your toothpaste, stop, as that’s just weird.

In the Fourth Circuit’s recent Barlow v. Colgate Palmolive Company, a dissenting judge determined that the majority rewarded the plaintiffs’ counsel’s bad behavior by refusing to vacate the remand order.  The facts underlying this opinion are very interesting.  The asbestos plaintiffs alleged their illnesses were caused by exposure to asbestos-containing products manufactured by a number of defendants, including Colgate.  Specifically, the plaintiffs contended that their use of Colgate’s “Cashmere Bouquet” power makeup products, which they contended “contained unhealthy levels of asbestos” caused their health problems.  However, plaintiffs also named their employers—in-state defendants, which destroyed diversity.

Despite the inclusion of the in-state defendants, Colgate removed the case to federal court arguing that the inclusion of the in-state defendants was fraudulent because the discovery taken in the case, including plaintiffs’ deposition testimony, clearly demonstrated that plaintiffs did not intend to pursue any other defendant.  Plaintiffs’ counsel moved to remand the cases and represented that there was some circumstantial evidence that the plaintiffs may have been exposed to asbestos as a result of working for the in-state defendants.  Based on those representations, the federal district court remanded the cases to state court.

Eight days after remand, plaintiffs moved to sever their cases from a trial group that was consolidated for trial.   In this motion, plaintiffs’ counsel specifically argued that plaintiffs were only arguing that the exposure to the Colgate “Cashmere Bouquet” products was the cause of their illness.  Counsel further disclaimed any exposure to asbestos at the plaintiffs’ worksites caused their illnesses.  Counsel went a step further and stated:  “In short, there is absolutely no evidence to indicate or even suggest that the Plaintiffs were exposed to asbestos in any form other than Cashmere Bouquet.”

Naturally, after receiving this motion, Colgate filed a motion with the federal district court requesting “vacatur of the remand order as a sanction.” The majority decided that it had no authority to provide such relief because the “federal removal statute generally prohibits review of orders remanding removed cases.”  The court determined that precedent also did not support Colgate’s requested relief because the court has “said, unequivocally, that ‘the district court has one shot, right or wrong,’ to decide whether a removed case should be remanded.” Further, the court rejected Colgate’s argument that it was not seeking “review” of the federal district’s court’s determination because “it seeks to relitigate the merits of an issue already litigated: whether the plaintiff’s fraudulently joined the nondiverse defendants, which was the issue the first-time around.” The court inexplicably concluded:  “Colgate had its chance to prove fraudulent joinder.  It failed.  It does not get a second try with an improved record.” Finally, the court determined that “if Congress wanted to carve out an attorney-misconduct exception to the prohibition on review of remand orders, it would have done so.”

The dissent, while acknowledging that Federal Rule of Civil Procedure 11 did not provide authority to vacate remand orders, reasoned that the federal district court did have jurisdiction to entertain the Rule 11 motion.   The dissent found the majority’s research regarding cases in which court’s embraced Colgate’s argument to be lacking and noted “it appears that every federal court that has addressed” these issues, even the Fourth Circuit. Further, the dissent referenced opinions issued by the Supreme Court of the United States that also determined that federal district courts had jurisdiction to sanction plaintiffs’ counsel.

Furthermore, the dissent determined the majority’s reliance upon the “one-shot” language in Lowe to be misplaced and explained:  “[I]f a litigant could flout his duty of candor before a district court and secure remand by misrepresentation, knowing that such remand is never subject to vacatur, he would lose all incentive to present the facts of a case honestly to the court during removal.”  The dissent was also critical of the majority’s statement that it would not carve out an exception if Congress had not done so by noting that the case to which the majority cited—Powerex Corp. v. Reliant Energy Servs., Inc. , 551 U.S. 224 (2007)—recognized exceptions that were not carved out by Congress. In sum,

 If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.  Whatever prolonging of this litigation vacatur of the remand orders might cause [plaintiffs] have only their own lawyers to blame.  And the truth is well worth the delay.

Id. at 58.

If you practice law long enough, you will find that theories of negligence have no bounds. Regardless of how cautious one may be, a clever lawyer can always argue that a person breached some duty of care. For example, in Adams v. Kroger Ltd. Partnership, No. 12-1499 (4th Cir. June 12, 2013), the Fourth Circuit held that a company can be held liable for negligent cleaning. Yes, negligent cleaning. The facts of the case are as follows: A sales representative for a wine vendor dropped a bottle while he was stocking the shelves at a Kroger store in Virginia. Following the accident, the sales rep blocked off one side of the spill, swept and mopped the area, and put up a warning cone. Thereafter, the plaintiff entered the area, slipped ,and fell. The plaintiff injured the retina in her left eye, leaving her legally blind. As a result, the plaintiff filed suit against Kroger and the wine distributor, seeking $1 million in damages.

At trial, the district court granted the defendants’ motion for judgment as a matter of law. The district court, finding that there was no evidence from which a jury could find the defendants breached a duty of care, stated:

When [the sales representative] accidentally dropped the bottle, he secured the area with boxes. He swept up the broken glass, obtained a mop and bucket and mopped the floor. Afterwards, he put a yellow caution cone in the area. All of these beg the question: what else was [the sales rep] supposed to do given what he had done? There is no evidence in the record, expert or otherwise, that establishes that [the sales rep] breached his duty of care.

The Fourth Circuit took it as a challenge. According to the Court, there was evidence that the sales representative used a hand-sanitizer-like product to clean the floor and, thus, the jury could find that act to be unreasonable. Likewise, the Court noted that the jury could have also found that it was unreasonable that the sales rep didn’t dry the floor. As such, the Court vacated the judgment and remanded the case. It will be interesting to see what the jury will do when given the opportunity to ponder the evidence in this matter. We don’t disagree with the Fourth Circuit that cleaning could be performed negligently. If the sales rep had dropped a pallet of wine and “cleaned” the spill by dropping a single paper towel into the area, then, sure, find him negligent. But, this is not the case. Here, the Court vacated the judgment, not based on the evidence of what the sales rep did, but on speculation about what he could have done. A jury could always think of something extra the sales rep could have done. For example, the jury could determine the sales rep should have re-tiled the floor to make sure no remnants of wine remained. But, no one would find him negligent for not doing so.

Even the wildest theories should be based on the evidence. In this case, the evidence showed that the sales rep took appropriate steps to clean the floor. There was no evidence that she fell because of the product used to clean the floor. The jury is to consider the evidence – not every wild theory based on what it is not.

[Hat Tip: Libation Law Blog]

Recently, our own Fourth Circuit Court of Appeals considered the First Amendment in the context of 21st century technology.  As you likely know all too well, Facebook has invaded most areas of our lives – it seems only appropriate that it envelop our jurisprudence, as well. As reported by The Washington Post, the Fourth Circuit has held that by clicking the “Like” button on a Facebook post a person is exercising his or her First Amendment rights. The case is Bland v. Roberts, — F. 3d —, No. 12-1671 (4th Cir. Sept. 18, 2013) [PDF].

The facts of the case are straightforward, but they inspire some good old fashioned eye rolling.  A Hampton, Virginia sheriff’s deputy was fired after he clicked “Like” on the Facebook campaign page of the candidate running against his boss.  [Sidenote:  Why would you do that?  This is a clear violation of the “silly plaintiff” rule.  But we digress.]  The fired employee, Daniel Ray Carter, sued, saying that he was fired for exercising his free speech rights.  The federal district court granted summary judgment against Carter on the grounds that clicking “Like” was not an actual statement, and thus, it did not rise to the level of protected speech. Both Facebook and the ACLU filed amicus briefs in which they disagreed with the district court.  The Fourth Circuit overruled the district court, and we believe rightly so.  Judge Traxler, writing the opinion, likened the “Like” to a political sign posted in a front yard.  Did Carter have the right to display a yard sign of his boss’s opponent on his front lawn?  Yes.  [Is it a good idea?  Different question.]  In our opinion, the district court not only got it wrong, but very wrong.  First Amendment jurisprudence makes it abundantly clear that non-verbal “speech” is protected.  The district court seems to have stepped back in time, forgetting some important precedent.

The Washington Post also had a nice article preceding the Fourth Circuit’s opinion, highlighting other disputes that have arisen from the use of social media in the workplace.  You can find that story here.

Do you “Like” the Court’s opinion?  What implications do you think it will have going forward?  Remember, the related issue of an employer’s ability to force employees to give up Facebook passwords is also still hanging out there.  A U.S. News report from April 2013 on that subject, outlining the lawsuits and proposed legislation, can be found here.

Floyd Mayweather followed up his recent victory in the ring against Canelo Alvarez with a victory in the courtroom against Anthony Dash.  Dash filed a lawsuit against Mayweather and World Wrestling Entertainment (WWE) alleging that they violated his copyright by playing a variant of Dash’s music during Mayweather’s entrance at two WWE wresting events.

The Fourth Circuit recently upheld dismissal of the suit on the grounds that Dash failed to provide evidence of his damages .

By way of background, Dash composed an instrumental “beat” in 2005 that he referred to as the “Tony Gunz Beat” or “TGB.”  He alleges that Mayweather and another individual co-wrote lyrics and recorded them over TGB to create song entitled “Yep.”  This song was played as intro music when Mayweather appeared at two WWE events, Wrestlemania and RAW, in 2008 and 2009.  Dash alleges that the use of “Yep” at the event infringed on his copyright and caused him economic damage of around $150,000.

In an lengthy opinion, the Fourth Circuit upheld the district court’s dismissal of the case on the grounds that Dash had not presented non-speculative evidence to support his claim for damages.   The district court had concluded that Dash was not entitled to actual damages because he had not offered “sufficient, concrete evidence to indicate an actual value of his beat.”  The Fourth Circuit noted that actual damages are to be calculated based on what a reasonable buyer would pay a reasonable seller.  Dash had presented an expert report stating that he could have received up to $3,000 for use of TGB if he had been paid a licensing fee.  However, the court found this report to be overly speculative.

The decision seemed to rest in large part on the fact that the value of songs are highly variable and depend on a number of factors.  Those factors include popularity of the work, the reputation of the songwriter, the presence of a released sound recording, and the possibility of a new recording in the studio.  The plaintiff’s expert failed to address these factors in reaching his opinion.

Of course, one could argue that trying to determine value of any song, whether from a well known artist or not, is highly speculative.  Music labels sign hundreds of artists per year hoping that one or two can become next Coldplay or Carrier Underwood.  While most don’t make it big, the ones that do tend to make it really, really big.  Figuring out which ones make it and which ones don’t is the hard part. Either way, it’s nice to see the that Mayweather can get back to more important things like attempting to win money on the shoulders of Johnny Football.

A law professor (who shall remain anonymous) once said that the use of Latin phrases in an opinion is an indicator that the judge has no idea what he/she is doing.  Hyperbolic?  Yes.  Plausible?  Of course.  We all know nothing screams “astuteness” like a foreign language – especially a dead one.  Accordingly, Latin is the perfect culprit for disguising unsound legal reasoning and maintaining judicial integrity.  On a similar note, Latin phrases are also the ideal substitute for the greatest legal argument ever made – “that just doesn’t sound right.”  What to do when the facts of a case leave but one logical conclusion and the common and statutory law do not pave a clear path to get there?  Toss in some Latin.  Works every time.  Recently, in Tang v. Synutra International, No. 10-1487 (4th Cir. Sept. 6, 2011), the Fourth Circuit put our theory to the test when a class of Chinese citizens attempted to bring certain product liability claims against a Chinese manufacturer in Maryland.  The Court’s answer?  Forum non conveniens. That’s Latin, right?

In Tang, the plaintiff class consisted of a group of Chinese residents who had been injured in China by melamine-contaminated infant formula.  The formula was manufactured and distributed in China by Sheng Yuan Nutritional Food Company, a Chinese subsidiary of Syuntra International, Inc.  Because Syuntra has its principal place of business in Maryland, the plaintiffs elected to file suit in federal district court in Maryland, alleging various causes of action pertaining to the manufacturing, distributing, and marketing of the formula.  The district court granted Synutra’s motion to dismiss the complaint on the basis of forum non conveniens. The Fourth Circuit agreed, holding that China was an available, adequate forum for the plaintiffs’ claims.

Forum non conveniens (Latin for “forum not agreeing”) is a well-established common law concept.  Accordingly, no archaic language creativity was needed (but certainly the first judge to coin the phrase must have first thought, “that just doesn’t sound right”).  Like the many cases that came before it, this case could lead to but one conclusion.

The plaintiffs’ argued that the American venue was the proper venue to adequately protect their interests.   There was some evidence in the record showing that Chinese courts had thwarted contaminated formula lawsuits.  Voluntary lawyers had been warned that their involvement in the litigation could lead to social unrest.  Affidavits from two Chinese lawyers indicated that Chinese courts unreasonably delayed the litigation even after the Supreme People’s Court announced its readiness to hear the claims.  If true, the plaintiffs would obviously face difficulty in pursuing their claims through the Chinese legal system.

Despite their apparent struggles, allowing Chinese residents who were injured in China by a product manufactured and distributed in China to bring their claims in the United States just doesn’t sound right.  People deserve an avenue for redress, but there must be some legal concept – or Latin phrase – to prevent our courts from having to adopt an open door policy.  The Fourth Circuit held that these plaintiffs had an adequate forum – a fund established by the Chinese government to compensate those affected by the contaminated formula.  While the American court system may provide the potential for greater relief, it seems unreasonable to allow the plaintiffs to forum shop under the facts of this case.

The Fourth Circuit used Tang as a platform to affirm the reach of the forum non conveniens doctrine to non-judicial remedies.  However, we wish the Court could just informally state what the rest of use are thinking – “that just doesn’t sound right.”  Certainly there must be a Latin phrase for that.

For a thorough summary of the Fourth Circuit’s opinion, please read this piece from our friends at the Product Liability Monitor.

Recently, the U.S. Department of Agriculture issued a news release regarding the recall of 226,400 pounds of ground beef from a company called One Great Burger out of Elizabeth, New Jersey. Customers had complained that the meat was discolored and emitted a bad odor.

To foresee or not to foresee, that is the question. Well, at least its the question when you are arguing for summary judgment on the basis of the plaintiff’s failure to produce evidence on the issue of proximate cause. In a recent unpublished decision by the United States Court of Appeals for the Fourth Circuit, the court reviewed the seemingly symbiotic relationship between the proximate cause element in a negligence action and the requirement that the injury be a foreseeable consequence from an act or an omission. Graham v. Progress Energy, Inc., No. 08-1906 (4th Cir. June 25, 2010) (unpublished) [PDF].

In Graham, the court was reviewing the district court’s grant of summary judgment in favor of the defendants. The case arose out of an incident in which the plaintiffs’ home caught on fire. The fire started after the plaintiffs began using candles as a source of light. The reason that they had to use candles was that they failed to pay their electric bill and thus the power to their home was disconnected. On the date that the fire occurred, the plaintiffs had fallen asleep before extinguishing their candles. The plaintiffs sued Progress Energy on a negligence based claim.

The court framed the narrow issue as being “whether a reasonable jury could conclude that Progress’s alleged negligent conduct proximately caused the Grahams’ alleged harm.” The defendants did not dispute causation-in-fact. They admitted that it was foreseeable for the plaintiffs to use candles to illuminate their home. However, Progress Energy contended that the plaintiffs actions (i.e., falling asleep before extinguishing the candles) was an intervening cause that broke the chain of causation. Furthermore, the defendants claimed that while using candles to illuminate their home may have been foreseeable, …”going to sleep with the candles lit or otherwise failing to attend to the candle so as to prevent them from falling was certainly by no means so.”

The court opined that the defendants’ argument “misconstrues the relevant inquiry because South Carolina law does not require that particular events be foreseeable.” The court went on to reason that only the general harm and general intervening cause need to have been foreseeable. The court found that since candle use was foreseeable, a reasonable jury could have concluded that some amount of candle misuse was also foreseeable. Finally, the court pointed to evidence within the record that supported the conclusion that the plaintiffs’ alleged harm was also foreseeable. As such, the court reversed the grant of summary judgment.

The court’s analysis, albeit sound, leaves the ordinary practitioner wondering what is the true meaning of an intervening cause. The answer is found in the procedural posture of this case – this appeal involved the review of a summary judgment order. Perhaps on remand, the once (and future?) fixture of the American judicial system will resolve this issue. Of course, I’m referring to the jury trial. For all of you out there, who like me, have only been practicing law within the last decade, allow me to explain. A jury is the fact finder that resolves factual disputes during a trial. We’ll discuss the term “trial” during our next lesson. As for our weary candle users, one thing we can be sure of– it is foreseeable that the jury will have to determine issues like comparative and contributory negligence before these plaintiffs will be permitted to recover for leaving the light, I mean candle, on.

From July 2002 to April 2007, Plaintiff Mary Cleo Couick took generic metoclopramide pills for treatment of gastroesophasgeal reflux. Reglan, the name-brand version of the drug, was manufactured by Wyeth, Inc. and Schwarz Pharma, Inc. Couick stipulated that she only took the generic version of this drug. However, Couick filed suit against both the name-brand manufacturers and generic manufacturers claiming that they failed to adequately warn her doctors about the risks associated with metoclopradmide, which caused her to develop tardive dyskinesia.

Against name-brand manufacturers, Couick brought claims for negligence, breach of undertaking special duty, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, breach of express warranty, and breach of implied warranties. In response, name-brand manufacturers filed a motion for summary judgment.

The Court first found that since “[e]ach of [Couick’s] claims [are] based on the premise that Wyeth and Schwarz are liable for Couick’s physical condition because they failed to adequately warn Couick’s doctors about the dangers of metoclopramide,” Couick’s claims, while masked in various legal theories, were a single claim for products liability.

The Court then held that under clear North Carolina and Fourth Circuit authority, a “name-brand manufacturer’s statements regarding its drug [cannot] serve as the basis for liability for injuries caused by another manufacturer’s drug.” As a result, the Court granted name-brand manufacturers’ motion for summary judgment.

This case is instructive to products liability practitioners in two main respects. First, despite a plaintiff’s artful pleading, claims based upon personal injury or property damage as a result of the manufacture, construction, design, selling, advertising, etc. of the product, is generally considered only one claim under a state’s products liability law. Second, the rule that a name-brand manufacturer is not liable for injuries caused by another manufacturer remains intact. See Foster v. Am. Home Products Corp., 29 F.3d 165 (4th Cir. 1994). Recently, we have reported on a number of cases here against drug manufacturers. This re-affirmed rule will become particularly important as these types of suits increase.

Since it’s Friday, we thought we’d share the above clip, which is one of our favorite depictions of a legal hearing in popular culture. It comes from the 1981 film, Absence of Malice, starring Sally Field as a naive young newspaper reporter and Paul Newman as the peeved object of her journalistic investigation (as well as that of her affection). Field’s reporter has been led to believe by the governmental authorities that Newman’s character is under investigation for murder. This scene, which comes late in the film, shows Wilford Brimley, who plays a senior Department of Justice official, taking everyone – and we mean everyone – to task for their unsupervised antics and sloppy approach to the administration of justice. (The second half of this clip can be found here).

Yesterday, in a divided opinion, the Fourth Circuit issued an important decision in the removal context of which defense counsel should be aware. In announcing its new adherence to the last served defendant rule, the Fourth Circuit stated that it would “join the Sixth, Eighth and Eleventh Circuits in adopting thelast-served defendant rule and hold that in cases involvingmultiple defendants, each defendant, once served with formalprocess, has thirty days to file a notice of removal pursuant to28 U.S.C. § 1446(b) in which earlier-served defendants mayjoin regardless of whether they have previously filed a noticeof removal.“ Barbour v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., — F.3d –, No. 08-1740 (4th Cir. Feb. 4, 2010) (PDF). For some early analysis on this matter, see this post at the North Carolina Appellate Blog.

This past December, the ABA Journal issued its third annual list of the best legal blogs. (We here at Abnormal Use are keeping our fingers crossed for best new legal blog next time!). Until then, though, at our Twitter page, we have created a public list of links to the Twitter accounts of all those so honored (at least all those with Twitter accounts). If you’re a Twitter user, you can follow that list here and see the original ABA Journal article here.

Self promotion mode on. Here in South Carolina, lawyers are now nearing the end of their CLE compliance year. Accordingly, one of our blog’s contributors – as well as another lawyer from our firm – will be making presentations to next week’s Greenville County Bar Association End of Year CLE. Senior associate and blog contributor Jim Dedman will be speaking about “Cybersleuthing 101,” a topic about which we can assure you he knows much. Shareholder Stuart Mauney will also be making a presentation entitled “The Lawyer’s Epidemic: Suicide, Depression, and Substance Abuse.” Mauney was recently appointed to chair the South Carolina Bar’s H.E.L.P. Task Force (Health and Education for Legal Professionals). You can learn more about the event, which takes place a week from today, on Friday, February 12, in this month’s Greenville Bar News [PDF].