Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.  

For all of you attending Annual Meeting this week – you might want to take a fire extinguisher to the cocktail mixer. Lawyerist.com has an interesting story regarding a lawsuit against the manufacturers of Bacardi 151. It seems that Bacardi’s popularity as a novelty in certain cocktails is contributing to its potential liability. Should the manufacturer be held liable for the tricks of a bartender? Have you had a close call or witnessed a trick like this at a bar? Let us know. In the interim, wear a fire retardant jacket if you are standing to close to the bar.

This is question that City of Chicago answered by banning the sale of bumper pads on Sept. 8, 2011. If you don’t have or haven’t been around infants, these are the pillow-like padding that is tied to the inside railing of a baby’s crib just above the mattress. Originally, bumper pads were the solution to a strangulation problem with cribs with wider crib slat spacing. Now, however, as crib slats are placed closer together, the bumper pads are more ornamental. But there are still some safety uses, i.e. preventing limbs from being caught or protection against the hard wood surface. Nevertheless, they carry a risk of strangulation if an infant rolls into it and does not have the strength to roll away.

The Chicago Tribune reports that the City of Chicago based the ban on the Tribune’s investigations “that found federal regulators for years have received reports of babies suffocating in cases that involved crib bumpers, yet have failed to warn parents or investigate all deaths.” See the full story here. The State of Maryland is also considering similar regulations. 

While obviously saving a child’s life is of the utmost importance, it seems tenuous and to ban the sale of a product on the report of one newspaper’s research. Moreover, the City even admits that this type of regulation should be left to the Federal Government. Yet, they did it anyway to quote, “sound the alarm.” Should the City of Chicago be allowed to ban bumper pads in order to force Federal action? What consequences does this method of spurring action have? Let us know your thoughts.

Today R.J. Reynolds’ preemptive attack on the latest power play by the Food and Drug Administration (“FDA”) to destroy the tobacco industry is to be heard by Judge Leon in the District Court of D.C. See The Legal Times Blog Post, dated August 19, 2011, for more details. The FDA is seeking to enforce its Final Rule that would require tobacco companies to place graphic images on its cigarette packages. See FDA, Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,368. These are not ordinary illustrations as one of the images is of a dead body post autopsy. 

In seeking a preliminary injunction the companies put forth two main arguments; first, the images themselves and their placement on the packages are an impingement on the companies’ First Amendment rights and amount to government speech. Secondly, the truncated timeline for compliance would result in millions of dollars of expenses for a regulation that has a substantial likelihood of being unconstitutional. However, whether the warnings are unconstitutional may not be as substantially likely as the companies argue.

We find out today whether Judge Leon believes the companies’ position. If I were a gambling man, I may bet that the preliminary injunction is granted. After all, the companies have filed a challenge to the rule and you cannot reclaim millions of dollars after they have been expended. What are your thoughts? Check back later for an update regarding Judge Leon’s decision.

The United States Supreme Court did not disturb the concept of General Jurisdiction in Goodyear Dunlop Tires Operations, S.A. et al. v. Brown, et al. In this case, the North Carolina Court of Appeals upheld a lower court decision finding personal jurisdiction over Goodyear USA subsidiaries in Luxembourg, Turkey, and France based on a “stream of commerce” argument. The only contacts that these subsidiaries had with North Carolina were that some of their products were sold – through intermediaries – in the state.

Ginsburg, writing for a unanimous Court, was having none of it. The Court noted that the North Carolina Court of Appeals misapplied the stream of commerce theory, and confused the ideas of “specific” and “general” jurisdiction. Using its prior decisions in Helicopteros, 466 U.S. 408 and Perkins, 342 U.S. 437 as benchmarks the Court found that the selling of “tens of thousands out of tens of millions” tires in North Carolina was not sufficient to exercise general jurisdiction over claims unrelated to the sale of those tires. The sale of such a relatively limited number of tires when compared to Perkins, wherein, a company managed its day to day operations from within Ohio, “fall far short of the ‘continuous and systematic general business contacts,’” that would make them amenable to jurisdiction.

While the Goodyear decision is not surprising, it is the stone that was left unturned that may lead to issues for the defense bar. In dicta, the Court noted the untimely assertion of the “single enterprise” theory in order to exercise jurisdiction. The single enterprise theory is similar to piercing the corporate veil in that the parent and subsidiary, at least for jurisdictional purposes, would be considered a single entity. Therefore, if the parent is subject to jurisdiction so is the subsidiary. The Court did not address this issue but it does highlight a potential new argument for the plaintiff’s bar. Is the single enterprise theory the end-around for exercising general jurisdiction over foreign subsidiaries? What does this mean for product manufacturers with subsidiaries operating in foreign countries? Let us know your thoughts.

In another jurisdictional case, J. McIntyre Machinery, Ltd. v. Nicastro, the United States Supreme Court returned to the hallmark of personal jurisdiction – purposeful availment to the forum state’s jurisdiction. For a more in-depth review and commentary on this decision, see High Court Eases Liability For Foreign-Made Products by  Allison Grande. Nicastro’s shift is pertinent to specific jurisdiction, while Goodyear highlights the general jurisdiction concept. However, Nicastro, does leave open jurisdicitional issues relating to modern day advertising and its effect on specific jurisdiction. Additionally, it does raise issues relating to foreign manufacturers selling their products through national campaigns rather than targeting individual states and whether such a campaign could avoid jurisdiction in any one state. Will McIntyre change the way foreign manufactures sell their products? Does it potentially leave U.S. Distributors out to dry? Let us know your thoughts.

Jeff Mosenkis, illustrates an often overlooked distinction in the regulations of the U.S. Government in his article Government Safety Regulation: Kind Mother or Big Brother? The article neatly points out the dual ideological approaches taken by separate Agencies operating on the same area – consumer product safety. Mosenkis refers to them as the “Kind Mother” and “Big Brother” approaches.

First, the Food and Drug Administration (FDA) issued a rule creating standards for the labeling of sunscreen. Second, the Consumer Product Safety Commission (CPSC) is working on a prosposed rule to require SawStop technology on all table saws. While these regulations seem to accomplish the common end – increased consumer safety, there approaches could not be further apart. Moskenis likens the FDA regulation to the “Kind Mother” gently ensuring that consumers are fully aware of the product they are going to purchase and are free to make the choice. While the CPSC’s approach is compared to that of “Big Brother” possibly requiring table saw manufacturers to include the technology and removing consumers from possible danger and the freedom to choose to purchase table saws with or without the technology.

The theories in Mosenkis’ article may apply to litigation strategies. For instance, can the Government’s role as “Kind Mother” or “Big Brother” be used to aid the defense? How does each role affect defense strategies in various industries? Does a “Big Brother” Government foreclose a Reasonable Alternative Design argument? If not, should it? Let us know your thoughts.