Abnormal Interviews: Law Professor Susan Rowe

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 latest installment, we turn to law professor Susan Rowe of the Charlotte School of Law in Charlotte, North Carolina. The interview is as follows:

1. What do you think is the most interesting development in products liability or torts litigation of the last year?

The obvious one is the Toyota gas-pedal acceleration issue. Very recently, Toyota settled the Saylor lawsuit in California where a California Highway Patrol officer and three of his family members were killed in August 2009 when driving a Lexus ES 350 that crashed going about 100 mph. Also, last week, a California judge set a deadline of October 12 for parties to identify claims that are not currently part of the complaint in the multi-district litigation or those claims will be dismissed from the multi-district litigation. There are about 186 class action cases for economic damages based upon unintended acceleration in 39 states, including D.C. and Puerto Rico. Some claims allege a defect in the electronic engine control system, while others allege defects related to floor mat placement. Toyota says its investigations have never found any problems with the electronic engine control system. It will be very interesting to see how these cases are ultimately resolved and whether it will be proven that there was an electronic problem.

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 What rule or concept in modern products liability jurisprudence do you believe is the most outdated?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

Contributory negligence and assumption of the risk being complete bars to recovery in products cases are probably the most outdated rules since most jurisdictions have moved to comparative fault, which reduces a plaintiff’s ability to recover but is not a complete bar to recovery. I think comparative fault is more fair. For the few jurisdictions that retain contributory negligence and are concerned about moving away from it, I would probably change the rule to a modified comparative fault regime that requires that a plaintiff be less than or equal to 50 percent at fault in order to recover.

3. North Carolina retains the concept of pure contributory negligence. How does this affect products liability and torts suits filed in that state?

Yes, North Carolina does retain contributory negligence, which remains a complete bar to a plaintiff’s recovery in any tort suit in North Carolina. The doctrine of last clear chance also applies in North Carolina, but it is unlikely to help a plaintiff in a products suit because a manufacturer will rarely have a chance to avoid the injury to a plaintiff before she is injured. A North Carolina bill to change to comparative negligence recently failed to make it through the Senate.

Chapter 99B of the North Carolina General Statutes contains North Carolina’s Products Liability Act. This statute explicitly provides that contributory negligence applies in products liability actions and that there is no strict liability in products liability cases. Instead, plaintiffs must rely upon other causes of action such as negligence, unfair trade practices, misrepresentation, or warranty. The North Carolina Supreme Court has held that the defenses under 99B, including contributory negligence, apply to breaches of the implied warranty of merchantability regardless of whether negligence is also alleged, which is a bit unnatural that contributory negligence may bar recovery to a suit brought under the UCC where negligence is never alleged.

4. What advice would you give to lawyers practicing the field of products liability litigation?

I would say that lawyers should watch how jurisdictions approach the Restatement (Third) of Torts. Jurisdictions are beginning to use this Restatement some when deciding products cases. The Restatement (Third) retains strict liability for manufacturing defect cases, but tends to move toward negligence when deciding design defect and failure to warn cases. Under the Third Restatement, a design defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.” A failure to warn defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings.” Thus, the use of the terms “foreseeable” and “reasonable” lean more toward a negligence standard.

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

I think the New Jersey Superior Court, Appellate Division decision in Kendall v. Hoffman-La Roche, Inc., No. A-2633-08T3, 2010 WL 3034453 (N.J. Super. A.D. Aug. 5, 2010) is interesting. In that case, the Appellate Division overturned a $10.5 million verdict for a plaintiff who developed ulcerative colitis after taking Accutane and remanded for a new trial. The trial judge initially prohibited Roche (the manufacturer) from using any numbers related to the number of incidences of IBD that developed in the general population as a way to show when Roche should have had signals that it needed to change its warnings. On the eighth day of trial near the conclusion of plaintiff’s case, the trial judge changed her mind and allowed the numbers to be used but issued a cautionary instruction to the jury, in part, that stated “[t]he comparison of a background incidence of . . . IBD, in the general population, to the reported incidence of IBD in patients taking Accutane, is not a scientifically accepted method of proving whether a particular product … acts as a trigger for, and, therefore, is a cause of a particular side effect.” She also sustained an objection by plaintiff’s counsel during defense counsel’s closing argument when defense counsel was going through Accutane usage numbers.

The Kendall court ruled that Roche had been prejudiced by the delay in allowing it to use the numbers and by the jury instruction and objection during defense counsel’s closing. The court also held that Roche could use the numbers not only to try and prove it acted reasonably in modifying its warnings, but also to disprove causation. The court based its reasoning on a similar decision by the same court that came out after the Kendall trial and before the appeal. In the prior case of McCarrell, Roche was never allowed to use the numbers. When McCarrell was retried, the jury returned a bigger verdict, so defendant’s use of the numbers may not be as helpful as one might think.

BONUS QUESTION: What do you think is the most humorous depiction of a torts lawsuit in popular culture, and why?