Tincher v. Omega Flex: Five Key Points From Pennsylvania’s New Standard For Strict Liability

  It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.   The 137-page majority opinion written by Chief Justice Castille may ... Continue Reading

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Mediation Of A Big Injury Case: A Game Worth Playing?

A few months ago, in a wrongful death case I have against one of the biggest companies in America, the company’s lawyer asked: will you agree to a mediation?   Our firm founder, Jim Beasley, Sr., had a simple method to mediation: he told the representative to call and figure out what their highest number was. Then he told them if it was settled or not and left the mediation.   I haven’t tried that one yet, but maybe I should.   I’m not a fan of mediation. Mediation is useful where the parties have some shared interest in mutually ... Continue Reading

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Comcast, Kozinski, and The Decline Of Class Actions

Nearly a year ago, I praised an objection Judge Alex Kozinski filed — as a consumer, not a judge — to a proposed class action settlement that he was a part of, and so I was dismayed to see a recent article noting Judge Kozinski’s complaint that “There's a tendency for lawyers to buy themselves off” in class actions.   He’s missing the forest for the trees: whatever the problems of class actions, the “tendency” we need to worry about isn’t that plaintiffs’ lawyers might be able to settle these cases too soon, but that the cases aren’t filed at ... Continue Reading

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Studies Again Show Dangerous Doctors Bigger Problem Than Defensive Medicine

If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.   If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”   Of course you wouldn’t. Thankfully, I made ... Continue Reading

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When Writing, An Ounce Of Empathy Is Worth A Pound Of Grammar

A lawyer has two jobs. First, the lawyer thinks about how the law might work, good or bad, in their client’s situation, and then tells their client. Second, the lawyer brings others around to ideas about the law that are good for their client.  Outside my office, there’s a poster of the brilliant xkcd comic “Up Goer Five,” in which the various complicated parts of the Saturn V Moon Rocket are “explained using only the ten hundred words people use the most often.” As the comic explains, the “US Space Team’s Up Goer Five” is “the only flying space car ... Continue Reading

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Walmart’s Answer To Tracy Morgan’s Lawsuit Is Worse Than You Think

Back in June, I wrote a short post on the fatal accident involving a Walmart truck plowing through traffic on the New Jersey Turnpike. It hit a charter bus carrying comedian Tracy Morgan and several of his friends and fellow comedians, including James McNair, who died in the crash. As I said then, “Walmart has responded with typical corporate doublespeak, promising to do ‘the right thing,’ at least to the extent the law forces them to do so.” Consider me jaded after enough years in this job: when a big corporation hurts someone and says they’ll do “the right thing,” ... Continue Reading

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To Practice Law Is To Be Afraid

When it comes to lawyer “war stories,” I agree with Philip Thomas: “The only stories about a lawyer that other lawyers want to hear are funny stories.” That said, cautionary tales have an important place in the law school curriculum: learning to “think like a lawyer” includes understanding how and why lawyers screw up. How else are law students supposed to learn just how dire the consequences can be?   Via the ABA Journal and the WSJ Law Blog, I saw a new law review article called, “This is Your Brain on Law School: The Impact of Fear-Based Narratives on ... Continue Reading

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MedPage Today Parrots Drug Company Marketing As “Medical News”

I represent clients in the consolidated Actos litigation, and so I’m well-versed with the science linking the drug’s use to bladder cancer. As the federal court overseeing the litigation held in a Daubert order, there’s ample scientific evidence demonstrating that even just one year of Actos use can increase the risk of bladder cancer. So, the headline at MedPage on August 29, 2014 was quite a surprise: “No Actos Cancer Link in Long Term Data.” I assumed that the headline reflected some new scientific study showing the absence of a link to bladder cancer.   Then I read the actual ... Continue Reading

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What If Liebeck v. McDonald’s Was Just Another Case?

This week marks the 20th anniversary of the verdict in the Stella Liebeck v. McDonald's hot coffee case. Abnormal Use has for years been one of the few places where people could find genuine information about the case itself, rather than just commentary about the case, the great majority of which is based upon misunderstood or mischaracterized facts. They've put up with a series of posts reflecting on the case's enduring legacy. They kindly let me step up on their soapbox for a day to give a plaintiff's perspective. Here's how my post begins: Medical malpractice has killed more Americans in the ... Continue Reading

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Lawyers Are Responsible For Their Clients’ Production of Documents

Earlier this week, I wrote about lawyers obstructing discovery by responding to discovery interrogatories themselves, either by letter or by an unverified response, rather than by having their client answer. Federal Rule of Civil Procedure 33(b) makes clear that’s just plain wrong.   When it comes to requests for production of documents (or electronically-stored information), the Rules are a bit more intricate — but, when used properly, more powerful.   Unlike Rule 33, Rule 34 (relating to requests for production of documents and electronically stored information) has no similar requirement that the party sign the responses. Thus, a lawyer may ... Continue Reading

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