• Intellectual Property Examination Question: Suppose the students at Ole Miss are successful in changing their school mascot to Admiral Ackbar from Return of the Jedi. (See here for the full story, or if you’d like to see the websites of the students behind the effort, see here and here). What causes of action might George Lucas have against the school, and if he could make money selling Ole Miss toys, would he bother to assert them? Better yet: What claims would the government Mon Calamari, Admiral Ackbar’s home world, have against Ole Miss under the circumstances? The potential for speculation is endless. (We here at Abnormal Use are still contemplating our suit against Mr. Lucas for his perpetration of the alleged Star Wars prequels, which we believe were, as a matter of law, unreasonably dangerous and defective.).
• Bruce is in legal news again. Decided: The Findlaw Noteworthy Decisions and Settlements Blog reports on the Ticketmaster settlement with the Federal Trade Commission on behalf of Bruce Springsteen concert ticket holders. The post also includes links to the FTC complaint, warning letter, and news release regarding the settlement. Can you count all the references to Springsteen songs in the piece? Surely, though, a reference to “The Price You Pay” would have been appropriate?
• If you’re a South Carolina lawyer, and you’re a member of a rock band (or, presumably, any other type of band), here’s a unique networking opportunity for you. From this week’s South Carolina YLD Email Newsletter: “The Young Lawyers Division is calling upon talented lawyer-musicians to participate in this year’s Justice Jam, scheduled for April 30 at the Elbow Room in Columbia. Proceeds will benefit Sexual Trauma Services of the Midlands. Bands of all flavors are encouraged to submit a demo for consideration. The only qualification is that bands have at least one attorney member. Please send MP3s to Travis Olmert at travis.olmert@carterlawpa.com or CD demos to Travis at Carter, Smith, Merriam, Rogers & Traxler, PA, P.O. Box 10828, Greenville, SC 29603. All demos should be submitted on or before March 22. Remember, only send a MP3 or demo if your band is willing to play. The lineup will be chosen and announced by April 2.”
• “[T]his court recognizes the ubiquity of computers today in the workplace, in schools, public institutions, and in government, and the prevalence of agreements and policies governing such use. Many of these impose unrealistic rules honored in the breach. It takes no imagination to conjure up a multitude of trivial and not so trivial violations that take place every day in the workplace. Workers use workplace computers for personal use in violation of requirements that they use their computers for business only. Workers violate policies prohibiting access to social networking sites. Reportedly, fifty-four percent of companies ban workers from accessing social networking sites like Twitter, MySpace and Facebook, yet seventy-seven percent of workers with a Facebook account use it during work hours. S. Gaudin, Study: 54% of companies ban Facebook, Twitter at work, Computerworld (Oct. 6, 2009).” State v. Riley, — A.2d —-, 2009 WL 5879349, at *13 (N.J. Super. Ct. Oct 30, 2009) (but apparently released to Westlaw only this week).
• This past Wednesday, South Carolina Supreme Court Chief Justice Jean H. Toal delivered the State of the Judiciary Address. An archived video of the speech can be seen here, along with a PDF version of her PowerPoint presentation slides. News coverage of the speech focused upon Justice Toal’s statement that the South Carolina courts were running on fumes financially and that tough decisions lay ahead. (For additional news coverage of her speech, see here and here). (Hat tip: South Carolina Access to Justice Commission).

Well, it’s Friday, so we might as well have some fun with popular culture. The law is not often a subject for the poets and singer songwriters, but when it is, such artists are usually at its mercy. Case in point: In the YouTube clip above, Bruce Springsteen covers “I Fought The Law,” made famous by the Bobby Fuller Four, and covered by many bands, including The Clash in 1979, the Dead Kennedys in 1987, and Green Day in 2004. (That’s right; you are reading a products liability law blog written by defense attorneys who know and reference punk bands.). Wikipedia alerts us that the song was done originally by Sonny Curtis and The Crickets (after the death of the late, great Buddy Holly). However, it was the Bobby Fuller Four’s version that brought the song into the public consciousness. Enjoy.

The question: Are personal letters from U.S. Supreme Court Justices to screenwriters considered persuasive authority? This week, the blogosphere has been picking apart Justice Scalia’s 2006 letter to screenwriter Daniel Turkewitz, whose brother, Eric Turkewitz, runs the New York Personal Injury Law Blog. Daniel had been researching the basis for a screenplay about Maine and secessionists, and not being a lawyer, he wrote all sitting members of the U.S. Supreme Court for advice on how to depict a legal dispute over secession in his film to be. Eric posted a copy of Justice Scalia’s response at his blog on Tuesday, and since that time a number of blogs have discussed it, including two separate posts at The Volokh Conspiracy (here and here). If you’ve not yet read the letter, check it out. Interestingly enough, Justice Scalia was the only Justice to reply to Daniel’s letter.

The Busy Lawyer’s Guide to Success has posted its Top Ten iPhone Apps for Busy Lawyers. (Hat tip: The Mac Lawyer). We here at Abnormal Use recommend TweetDeck, and, of course, Shazam, which no lawyer – indeed, no person – should be without.

According to this report at Injured: The Findlaw Accident, Injury and Tort Law Blog, Plaintiff’s lawyers are already seeking black box data from Toyota in the new acceleration suits. Attorneys should keep an eye on this litigation. Although some black box data can be downloaded by third party applications and consultants, some cannot. If judges get into the habit of granting orders compelling automotive companies to download their vehicles’ black box data, how might those same judges rule in later personal injury cases in which the automotive company is not (necessarily) a defendant? We’ll see.

• “It is not always sunny in Philadelphia for product liability lawyers – especially defense lawyers like us,” – Jim Beck, writing in this post, entitled “It’s Sunny in Philadelphia,” at the Drug and Device Law blog. How can you not read a post with that introduction? (Unfortunately, however, there is no mention of Green Man in this particular post.).
• Brian Comer at the South Carolina Products Liability Law Blog has a nice post analyzing South Carolina warning law and how it might be applied in the context of cell phone use while driving cases. We previously posted on that topic here. In his post, Comer concludes:
  

  [T]his is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.

  So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of “obvious risk.”

  He may be right. As commonplace as cell phones are today, it is difficult to imagine a jury of 12 individuals (all of whom likely have cell phones themselves) abandoning the common sense idea that a driver is responsible for his own actions while on the roadway. Cell phone providers would have a strong argument that the driver’s actions at least were a superseding cause of the injury-producing activity. However, the common sense approach to refuting liability may not be as convincing against a manufacturer of new age, interactive, electronic devices designed specifically for installation directly in the driver’s dashboard.

• “We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2-1706.5 of the Code violates the separation of powers clause of the Illinois Constitution and is invalid. Because the Act contains an inseverability provision, we hold the Act invalid and void in its entirety. ” Lebron v. Gottlieb Memorial Hosp., — N.E.2d —-, Nos. 105741, 105745., 2010 WL 375190 (Ill. Feb. 4, 2010) (citations omitted) [PDF]. The Illinois Supreme Court found that the $1 million limits for hospitals and their personnel and $500,000 limits for doctors operated as an “unconstitutional legislative remittitur.” (Link courtesy of the Mass Tort Litigation Blog by way of the In the Jury blog).
• The WSJ Law Blog reports on Merck’s recent settlement of shareholder lawsuits arising from its withdrawal of Vioxx from the market.

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].

• “[W]hile the Beastie Boys might disagree, the First Amendment does not imply a ‘right to party’ dissociated from expression.” URI Student Senate v. Town of Narragansett, — F. Supp. 2d —-, No. 08-207, 2010 WL 222587, at *6 n.4 (D.R.I. Jan. 22, 2010) (internal link obviously added) (Link courtesy of The Volokh Conspiracy). Nice, but can it compete with the 1987 Fifth Circuit Talking Heads opinion? We here think not.
• The Cal Biz Lit blog offers its analysis of some recent uses of California’s Proposition 65, which empowers private plaintiffs to sue certain companies who are allegedly exposing persons to “chemicals known to the State of California to cause cancer” or “chemicals known to the State of California to cause reproductive or developmental harm” without a “clear and reasonable warning.” The blog notes how this provision was recently used to extract settlements from manufacturers of purses made of vinyl and leather, which sometimes contain lead.
• The VLW Blog reports on the very recent Sutton v. Roth, L.L.C., No. 08-1914, 2010 WL 235143 (4th Cir. Jan 21, 2010) (unpublished), a ruling the TortsProf Blog is calling a “sequel to the McDonald’s coffee case.” Apparently, the Plaintiff alleged that when he bit into his sandwich, “the grease from the inside of the chicken sandwich spread out all over [his] bottom lip, [his] top lip, down onto [his] chin.” According to The VLW Blog, the Plaintiff sued McDonald’s and its franchisee for $2 million, but a federal district judge granted summary judgment for McDonald’s and judgment as a matter of law for the franchisee, who had to face a brief trial on the merits. (Perhaps the franchisee didn’t earn summary judgment because one of its employees remarked that “[t]his is what happens to the sandwiches when they aren’t drained completely.”). The district court did, however, grant the franchisee’s motion in limine to exclude that statement, which became one of the Plaintiff’s appellate points. Last week, the Fourth Circuit reversed both orders and remanded the case back to trial. (The opinion is here [PDF]).
• This week, Brian A. Comer at the South Carolina Products Liability Blog began the first in a series of posts on South Carolina warning law.
• The South Carolina Bar has made available online the full report of its Young Lawyers Division Social Media Task Force. Initially submitted to the Bar’s Board of Governors in November of 2009, the report was presented to the Board at last week’s South Carolina Bar state convention by our own Jim Dedman, who chaired the task force. Included in the report are recommendations on how the State Bar can use social media to better communicate with its members. You can see the full report here (PDF).

The Richmond Times Dispatch reports on a recent Plaintiff dropping his tobacco lawsuit against Phillip Morris in exchange for a mere $1,000 settlement. “Plaintiffs who bring such flawed cases need to consider the risk of having to pay the company’s legal fees and costs if they lose at trial,” said Murray Garnick, the senior vice president and associate general counsel of Altria Group, Inc., the parent company of Phillip Morris, according to the report. “The company is committed to trying to recover the fees and costs it incurs in defending these cases, as Florida law allows,” Garnick went on to say. (1/13/10).

Bad Lawyer NYC editorializes on a January 9 report from The Missoulian which reported that a Montana district judge denied “a motion by attorneys for Louisville Slugger to throw out a verdict that found the baseball bat company liable for the 2003 death of a baseball player during a game in Helena.” According to the news report, after the player died upon being struck by a baseball which was hit by an alumnium bat, “[his] parents sued the company in 2006, alleging that an “unreasonably dangerous” metal bat caused his death and Louisville Slugger failed to warn of the dangers.” Bad Lawyer NYC, who professes to ordinarily be sympathetic to Plaintiff’s claims, expresses his skepticism at the ruling. (1/11/10).

The California Punitive Damages Blog reports that the People’s Republic of China has now authorized punitive damages in products liability lawsuits. (1/11/10).

David Bernstein at The Volokh Conspiracy posts the abstract to his recent article, “Getting to Causation in Toxic Tort Cases,” from the Brooklyn Law Review. He describes the piece as a “more or less practical guide for judges and attorneys to causation issues in toxic tort cases, not a philosophic treatise.” The abstract can be found here. (1/5/10).

Michael Ariens of the Marquette University Law School Faculty Blog finds that “the rise (and fall?) of mass tort litigation” is one of “the ten most important changes in the American legal profession since [he] entered law school” in 1979. For his rationale, see here. (1/2/10).

Jeffrey V. Mehalic at The West Virginia Business Litigation Blog writes about Smith v. United Salt Corp., a recent opinion from the U.S. District Court for the District of West Virginia, which found that Plaintiffs’ counsel could contact and conduct ex parte interviews of employees of the opposing party (the Plaintiff’s co-workers) so long as the employees who were contacted were not in a supervisory or managerial role. (12/31/09).