Recently, a New York judge threw out a lawsuit by nine former students of New York Law School (NYLS) who accused the school of engaging in deceptive practices by inflating employment statistics to attract prospective students.  Even though NYLS won the battle, neither the school, the students, nor the legal profession in general came out looking too good.   The judge basically said that the school may be “lackluster” and the employment statistics may have been misleading (although not materially) but the students should have done their homework before plunking down over $100k on tuition.

Just by way of background, NYLS ranked #135 in the latest U.S. News & World Report law school rankings, which is only a few spots ahead of where the magazine stops assigning schools a number.  NYLS charges its students $47,800 per year in tuition and fees alone.  At least they seem to spell that one out in black and white on their website.

The crux of the disgruntled students’ lawsuit was that the school’s website and marketing materials would have led a reasonable consumer to believe that between 90 to 92 percent of the school’s graduates secured full-time jobs as lawyers within nine months of graduation.  However, in reality that percentage included students who only secured part-time legal jobs, as well as students who secured non-legal employment.  According to the complaint, only 40 percent of the school’s graduates had full-time jobs that required a law degree.  Ninety-two  vs 40 percent – minor details right?

Even if that detail was buried somewhere deep within the pretty NYLS brochures, the judge believed it was the students’ duty to dig deeper and find the hidden truth.   He held that “by anyone’s definition, reasonable consumers – college graduates – seriously considering law schools are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives.”

We particularly liked this tidbit from the judge: “It is difficult for the court to conceive that somehow lost on these plaintiffs is the fact that a godly number of law school graduates toil in the drudgery or have less than hugely successful legal careers.  NYLS applicants, as a reasonable consumer of a legal education, would have to be wearing blinders to not be aware of these well-established facts of life in the world of legal employment.”

Even after all this bad press, NYLS still publishes employment data that appears to be vague at the very least.  If you look at their current numbers, it is unclear how they define whether someone has a legal job.  They claim a job is a “legal position” if a JD is “required or preferred.”  What exactly is “preferred”? More importantly, there’s a number that is glaringly missing from all those stats: only 65 percent of 2010 NYLS graduates were employed as lawyers at the time the data was gathered.  After you remove the 5.7 percent of graduates “employed” as fellows, only 310 out of the 481 NYLS graduates are working in “legal positions” under the curious “JD required or preferred” standard.  Moreover, they don’t disclose how many of those 310 had full-time legal jobs.

We here at Abnormal Use tend to agree that prospective law school students should be smart enough to do some independent investigating and figure out whether a law school is truly a good investment for them.  It really only takes a few minutes of Google searching to reveal that most law school employment data is a somewhat of a sham.  However, we can’t help but wonder whether law students should be expected to dig deeper.  In this noble profession of law, shouldn’t a prospective student expect to be given honest, open, and candid information from the institutions charged with molding young lawyers?

According to the Chicago Tribune, a New York man has sued Frito Lays in a proposed class action claiming that the “all natural ingredient” labels on the company’s Sun Chips and Tostitos products are deceptive. According to the complaint, the chips contain ingredients derived from genetically modified corn and oils. Further, the plaintiff alleged he paid an additional 10 cent “premium” for the chips over their Doritos counterpart. The plaintiff seeks damages in excess of $5 million.

The case is captioned Shake et al. v. Frito Lay North America, Inc., No. 12-408 (E.D.N.Y. Jan. 30, 2012).

These allegations raise a couple of pertinent issues. First, can the plaintiff really claim that he paid a premium for “all natural” chips?  For many, a ten cent premium may seem trivial.   We here at Abnormal Use appreciate the desire to purchase organic or all-natural foods. In doing so, we expect to pay a premium.  However, we would expect these premiums to far, far exceed the 10 cents alleged by the plaintiff.  Ever try purchasing organic milk for 10 cents more than its non-organic counterpart?  When faced with the decision of purchasing two bags of chips, one “all natural” and one not, we doubt a 10 cent differential in price is a deciding factor in the process. In fact, we might not even notice the difference in cost.

Second, to our knowledge, the Food and Drug Administration has no definition for “natural” as it applies to food labels.  Of course, it may be difficult for the FDA to define such a term.  What is “all natural” anyway? Certainly, the phrase can be left to varying interpretations.  Should “all-natural” be restricted to plants grown without the use of pesticides?  Or should the definition go further?  Apparently, the plaintiff’s beef with Frito-Lay is that the company uses organisms genetically modified in a lab by swapping genetic material across species.  It is unclear whether the allegations stem from the “genetic modification” itself or that the modification itself which occurred in a lab.  Genetic swapping occurs naturally all the time.  We can not even begin to count the number of products we enjoy on a daily basis that were created as a result of “natural” genetic swapping.  Are these products considered “all natural”?  Where do we draw the line?

The desire to eat foods the way they were intended is a noble feat.  However, we shouldn’t be so quick to dispose of the advances of modern science.

Let’s not be so quick to pass judgment on new plant species created by the marvels of modern science. Who knows, maybe we are on the brink of the new “natural”?

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.

Every area of law has its particular discovery challenges, including products liability.  Quiz: How many times have you been out at the scene of an inspection, face to face with a destroyed ________ (fill in blank here: vehicle, boat, grill, house, et cetera), and asked the question of your client/engineer, “Well, whaddya think?  Is it ours?”  The question gets even trickier with component manufacturers.  “Well, did we sell that one inch piece of ______ in the destroyed ______?”

What a maddening area of practice, where you can go for months defending a case (or, for that matter, suing a manufacturer) and not even be certain the correct parties were involved.  In fact, you might actually resolve a case or two without ever having a definitive answer to that question. Ah, the perils of products cases!

That brings us to the relatively recent case of Fisher v. APP Pharmaceuticals, LLC, No. 08–CV–11047, — F. Supp. 2d —, 2011 WL 812277 (S.D.N.Y. March 1, 2011).  The case centered around the use of the drug heparin by the plaintiff’s decedent following elective heart surgery.  The plaintiff alleged that, rather than preventing blood clots as the drug was designed, the heparin actually caused the decedent’s blood to clot, which resulted in the decedent’s death of a heart attack. The personal representative of the decedent’s estate sued Hospira and John Doe Corporations asserting theories of strict liability/failure to warn, design defect, negligence, breach of warranty, negligent misrepresentation, fraud, and wrongful death.  Through two amendments to the original complaint, Plaintiff added APP Pharmaceuticals and Baxter Healthcare Corporation as defendants.

Motion to Dismiss Based on Lack of Product/Manufacturer Identification

Both APP Pharmaceuticals and Baxter moved to dismiss.  APP argued that the complaint failed to sufficiently identify the manufacturer of the heparin (the classic “it wasn’t me” defense, challenging Plaintiff to prove identity).  Baxter asserted that the complaint did not allege that Baxter’s product injured the decedent.

The Court cited the applicable pleading standards as follows:

Federal Rule of Civil Procedure 8(a)(2) requires a claim for relief to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While the Rule 8(a)(2) pleading standard does not require “detailed factual allegations,” it does require more than “labels and conclusions” or a “formulaic recitation of the elements of a claim.” In a New York products liability action, a plaintiff must prove (1) that the defendant’s product had a defect that rendered it unreasonably dangerous at the time it left defendant’s control and (2) that the defective product supplied by the defendant caused plaintiff’s injury.

Defendants also argued that several of the claims were time barred, based on the late addition of the Baxter and APP defendants.  Plaintiff argued, of course, that the claims related back to the original complaint.  We all remember the relation back rule:

Plaintiff argues that the [second amended complaint] relates back to the original Complaint because the John Doe Defendants named in the original Complaint served as place-holders for APP and Baxter under New York Civil Practice and Rule 203(f). Under New York law this argument is only successful if the original pleading gave notice to the newly added parties. N.Y.P.L.R. 1024 and 203(f). It is Plaintiff’s burden to establish that “(1) both claims [arise] out of the same conduct, transaction or occurrence, (2) the new defendant is united in interest with the original defendant, and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or it as well.”

I used to have a professor who would say something like, “The best way to win a lawsuit is on a technicality.”  I think what he was getting at (as all law professors force you to guess what they are getting at, rather than actually coming out and saying what they are getting at) is that it is much easier to win and defend on appeal a clear procedural decision.  The converse of that is, the worst way to lose a lawsuit is on a technicality.  Even worse, it is absolutely no fun at all to explain to a client that you lost a lawsuit because of a technicality.  Today, through Chow v. Reckitt & Colman, Inc., No. 81, 2011 WL 1752234 (N.Y. May 10, 2011) [PDF], we are reminded that procedure matters.

I think we can all agree that drain cleaner is dangerous and can cause physical harm if not used correctly.  After all, anything that will eat through grease, hair, and other sludge would probably taint the delicate skin of a lawyer.  In Chow, a restaurant employee used Red Devil Lye to clear a drain in a Manhattan restaurant and was injured during that task.   There was no problem dispensing with the failure to warn claim, but the design defect claim was a different issue.  In its motion for summary judgment, the defendant said something like, “C’mon, this is lye.  We buy it specifically because it devours sludge.  It’s dangerous because it has to be dangerous to do its job. ”  But the Court of Appeals denied summary judgment.  New York rules require the movant to produce evidence at the summary judgment stage in order to perform the risk-utility test.  There was no such evidence in the record. On this point, the Court of Appeals noted as follows:

[D]efendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue … cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry—either a retained expert or an employee of one of the defendants—could have done it. But the burden was not met.

In other words, the defendant couldn’t just point to the absence of evidence for the plaintiff’s case.  Indeed, the court was clear that the plaintiff could not win at trial on the evidence before the court, and at trial, a directed verdict would be proper.  Nevertheless, New York procedure requires the submission of evidence in cases at the summary judgment stage in cases such as these.  It was not enough to say that the product was dangerous by nature, but proof that there was no functionally equivalent safer alternative was necessary.

So, the lesson for today is, we must look at all of our cases and think about how we could lose them.  There are entire blogs about frivolous lawsuits, and defense lawyers are notorious for thinking that at least half of all  lawsuits are trumped up lottery tickets.  Nevertheless, not looking at the motion critically had some real consequences in Chow.  But the plaintiff’s lawyer did what he intended to do, which is survive summary judgment.  Don’t take your cases for granted, defense lawyers.  An overlooked procedural detail may bite you.

For many, the year 2009 will be remembered as the launching point for several successful careers. President Obama was inaugurated. Chesley Sullenberger became America’s hero. Taylor Swift released 2009’s top selling album leading to her 2010 Grammy. For the Toyota Motor Corporation, however, the year was not so kind.

For Toyota, 2009 marked the beginning of the largest vehicle recall in the company’s history. Initially, Toyota was forced to recall some 3.8 million vehicles upon the discovery that removable floor mats could cause accelerator pedals to stick in the depressed position. Toyota later broadened the recall after determining that the accelerator pedals could stick even without the aid of the mats. In total, over 6 million Toyota vehicles were recalled. As of February 2010, 2,262 incidents of unintended acceleration had been reported. That figure included 815 crashes, 341 injuries, and 19 deaths. Not surprisingly, Toyota became a popular defendant in a plethora of subsequent lawsuits. Reports estimated that these lawsuits could cost Toyota over $3 billion. Certainly, 2009 was a year Toyota would just as soon forget.

Recently, Toyota’s misfortunes took an unexpected turn when the first of these recall-related lawsuits went to trial. In Sitafalwalla v. Toyota Motor Sales, U.SA., Inc., No. 08-CV-3001 (E.D.N.Y. 2011), the plaintiff, Dr. Amir Sitafalwalla, sued Toyota in a New York federal court, claiming that a defect, in either the electronic throttle system or the floor mats of his 2005 Scion, caused his car to suddenly accelerate into a tree. After the plaintiff’s expert testified that the accident was caused by an unsecured driver floor mat, the defense moved to exclude any evidence related to the electronic system. Judge E. Thomas Boyle, the U.S. magistrate presiding, granted Toyota’s motion. With evidence of the electronic system excluded, counsel for Toyota argued that the accident was caused by the driver – not the floor mat. After deliberating for less than one hour, the jury agreed with Toyota.

Jury forewoman, Regina Desio, indicated that after weighing all of the evidence, the jury “came to the conclusion that there was not a defect with the automobile.” Toyota is touting the jury’s conclusion as precedent for the hundreds of other lawsuits yet to be decided. Toyota spokeswoman, Celeste Migliore said:

[The case] clearly demonstrates a plaintiff’s inability to identify, let alone prove the existence of, an alleged electronic defect in Toyota vehicles that could cause unintended acceleration.

While we here at Abnormal Use share Toyota’s enthusiasm with the jury’s decision, it may be premature to accurately forecast the outcome of the outstanding lawsuits. First, jury verdicts lack precedential value. Unfortunately, we have all experienced the enigma of the unpredictable jury. Second, we do not know how much the plaintiff’s own conduct may have influenced the jury’s decision. Certainly, a jury may treat a plaintiff driving at an excessive rate of speed on a neighborhood street differently than a plaintiff gently rolling away from a stop sign prior to the “unintended acceleration.” The plaintiff alleges that his car accelerated as he shifted from drive to park with his foot on the brake. We do not know how credible the jury found these allegations, only that it found Toyota was not liable. Finally, no evidence was actually presented to the jury regarding an alleged electronic defect. Because Judge Boyle disallowed the plaintiff’s evidence on the electronic system, at best, Toyota may cite the jury verdict as evidence that the floor mats were not defective.

Whether this decision is a foreshadowing of things to come or an outlier in a long series of jury verdicts, only time will tell. For the moment, however, we should let Toyota enjoy the good news. Its been awhile.

Thus, the court held that a new trial was not warranted, and the verdict should stand. The court based its ruling on the fact that there was no dispute at trial that an improper use of portland cement could cause burns. This was therefore not an issue at trial. Rather, the “crux of the liability dispute” was whether the packages of cement purchased by the plaintiff contained adequate warnings of that hazard. Accordingly, the information was not sufficient to warrant a new trial. Furthermore, the court held the “sketchy, second- and third-hand information” provided by the plaintiffs did not warrant a post-verdict inquiry into the juror. The court concluded instead that the $125,400 “verdict fits comfortably within the realm of reasonableness.”

As a defense lawyer, I dream about preemption; it can bar a staggeringly wide range of claims. The plaintiffs in Gelber v. Stryker, — F.Supp.2d —-, No. 09-CIV-1322, 2010 WL 4740432 (S.D.N.Y. Sept. 14, 2010), however, do not view preemption so fondly. After Jeannette Gelber’s hip was replaced with a Stryker Trident hip, she began to have pain and noticed a squeaking sound when she walked. She was told the artificial hip was defective, and thereafter, filed suit. The defendants filed a motion to dismiss, and the plaintiff conceded the dismissal of claims based on failure to warn, improper labeling, improper or misleading marketing and/or defective design. Therefore, the only claims remaining in the defendants’ motion to dismiss were those of negligence, strict liability and breach of warranty claims based on alleged violations of the FDA’s manufacturing requirements.

And then, the defendants dropped the atom bomb: federal preemption based on the rigorous review the FDA had used in approving the Trident hip for use and distribution; in fact, as a so-called “Class III” device, the Trident hip had been subject to the “rigorous regime” of premarket approval (“PMA“) within the FDA, a process under which only 1% of devices were scrutinized in 2005:

The PMA process is lengthy-it takes over 1,200 hours to review each application-and involves the submission of volumes of comprehensive information on the device. The FDA only grants premarket approval if it finds there is a reasonable assurance of the device’s safety and effectiveness. After approval, the FDA still retains regulatory control over the device. The manufacturer is prohibited from changing “design specification, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness” without first obtaining FDA’s approval.

There is a way around federal preemption, and the plaintiffs tried it in this case: the plaintiffs claimed that the defendants violated FDA manufacturing requirements, a so-called “parallel” claim. Here’s how a parallel claim would work, in the Court’s opinion

Riegel [v. Medtronic, Inc., 552 U.S. 312, 316, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008)] specifically found that claims of strict liability, negligence and breach of implied warranty were expressly preempted. However, there is an absence of Supreme Court guidance on whether the [Medical Device Amendments of 1976] preempts state requirements of general applicability that only incidentally regulate medical devices, e.g., Uniform Commercial Code or unfair trade practice laws, since Riegel refrained from analyzing the exception provided by 21 U.S .C. § 808.1(d)(1). Riegel, 552 U.S. at 328-29 (” § 808.1(d)(1) can add nothing to our analysis but confusion…. Neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally[,] the regulation fails to alter … the outcome of this case”). Post-Riegel, courts have struggled to determine whether state-law claims that only incidentally regulate medical devices are still available insofar as they are “parallel” to federal requirements. . . . This Court finds it persuasive that since the Supreme Court did not carve out a safe harbor for state laws that only incidentally regulate medical devices, the same preemption analysis applies and only those claims that are parallel to federal requirements are permissible.

(internal citations omitted). This might have been a great argument for the plaintiffs, except that the court held that they did not sufficiently plead claims “grounded in violations of federal law and/or requirements.” The pleadings didn’t provide the requisite amount of factual detail and specificity to survive the defendants’ motion to dismiss and, therefore, the remaining claims of the plaintiffs were dismissed. Pesky pleadings. However, the Court stated that “because courts have only recently articulated how a plaintiff can successfully plead a parallel claim,” the plaintiffs would be allowed to replead.

Bedbugs are quickly becoming a national epidemic. Indiscriminate in their selection of venue, the bugs are popping up everywhere, from luxury hotel suites in Manhattan to hospital beds in Tennessee and college dorm rooms in Pennsylvania and North Carolina. Not surprisingly, a significant number of lawsuits have followed. The most recent of these is a high-profile suit filed by a Michigan couple against New York’s famed Waldorf-Astoria hotel, which illustrates that the alleged damages in these cases can be extraordinary.