And, pretty soon they'll cost less than a burger.

I've sat mostly quiet over the last few years, wondering how something as American as the hamburger could so easily become the focus of so much attack?  What in the world happened?

Over the last decade, we have heard story after story questioning the safety, efficacy and quality of this distinctly American product.  Whether you enjoy a burger on the grill, meatballs in the crock, hamburger (helper) on the stove, a quick burrito in the microwave or a family size helping of meatloaf in the oven, most Americans thoroughly enjoy -- if not cherish -- their ground beef.

But, we also have to pay for it.  In recent years, the cost of ground beef has increased substantially.  And, in the coming years, it now appears; the cost of this product will increase even more. This is because of the extraordinary amount of effort (and science) that is now required to process beef. 

From slaughter and processing to the kitchen table, billions of dollars have already been spent making ground beef as safe (and as perfect) as it can be. 

But perfect is relative, I suppose; and the onslaught of unfounded criticism continues. Set aside the occasional but continuing ramblings about whether ground beef is good for your heart (it is) or whether it increases your risk of cancer (it wont), additional heated debate persists regarding its overall safety and now -- it would appear -- its color.  And, thus, the industry is once again confronted with yet another unfortunate example of reactive sensationalism quickly outpacing reason and science. 

Will the madness ever stop?

Probably not.  So, I wont spend any time here repeating or expanding upon the expert explanations regarding what, exactly, LFTB really is.  It is beef.  And, that issue, I think, is settled.  What I will say, however, is that we should be careful not to expect ground beef to become something it is not. 

We are extremely lucky to have access to such a tasty, plentiful, safe and affordable product.  And, frankly, the health of our nation has in many ways been built on the same ground beef we now discount. 

So, back your burgers.  And, if you have any doubts, just ask your kids about how boring life would become without a virtually unlimited and affordable supply of burgers, meatballs, burritos and meatloaf. 

And, yes, we also need to think about those who struggle just to put food on the table.  We should be very careful, in the end, not to price ourselves out of our most basic needs -- like affordable protein.   As one of my readers aptly noted a few months back, if we don't get our act together soon,"maybe we'll all have to start grilling steaks on the barbecue instead of burgers [just] to save ourselves a few bucks."  

That'd be something.

Porsche AG issued a recall today for 1232 of its 2012 911 Carrera S Coupes, stating that a fuel line could become disconnected due to its proximity to a coolant line.  The result could be fuel leakage, causing the engine to stop or possibly to catch fire.  So why is this important?  Companies issue recalls every day – why should you (or anybody else) care about this one?    

A prompt and thorough investigation of a fire scene is critical to any litigation arising therefrom.  Documenting the investigation plays an indispensable role to the defense of any fire case.  The National Fire Protection Association (NFPA) publishes guidelines to be followed in fire investigations to ensure effective documentation of a fire scene and to assist in determining its cause and origin.    The most recent edition, NFPA 921 - Guide for Fire and Explosion Investigations, can be used as an offensive weapon and defensive shield in all aspects of fire litigation. Some of the guidelines espoused are detailed as follows:

In the majority of jurisdictions, to establish a claim for design defect in a product liability action, the plaintiff must present some proof of a “feasible alternative design” or “reasonable alternative design.” 

A growing trend among employers is requesting applicants’ usernames and passwords to gain access to restricted social media in order to investigate applicants during the hiring process.  In response to this trend, Illinois and Maryland have each recently proposed laws that would essentially ban employers from requesting this type of information.  The main arguments for and against the proposed laws are centered around constitutional privacy concerns, however,  employers should consider that restricting their hiring personnel’s access to this type of information is not as harmful as some opponents have argued.

We are witnessing advances in technology and machine design at a dizzying rate.  Products that were purchased new can literally be “old” within months, as new features and enhanced safety and utility features are rolled out.  What, then, is one to do with true “legacy equipment” – machines that have been in place for years and, often times, decades?  When accidents occur on this equipment, or when manufacturers are called upon to repair them, questions about retrofitting, warnings and/or recommending the equipment be taken out of service often arise.  This can be a tremendous challenge for defense counsel in defending legacy equipment – even more so for in-house counsel that must answer the calls from service personnel in multiple jurisdictions.   Also, what is it that in-house counsel really need, want and appreciate from their outside lawyers in defending and reporting cases?

A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.)  The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve.  The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier.  Clearly, courts have taken notice of the problem.  Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs.  This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source. 

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial.  In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel.  During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing.  The judge found out and was forced to declare a mistrial.  Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial.  Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial.  Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.      

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service.  The tweets included a post which stated:  "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?"  These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway.  After being dismissed by the judge, Mr. Rogovoy stated:  "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in."  In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom.   In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions.  This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations.  The court must then monitor the jurors as best it can, and follow through with the threatened punishment.  Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions.  However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem.  Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case.  This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules.  For this reason, it is important that the instructions make more than a mere passing reference.  Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be).  At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule.  While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view.  They see lawyers and judges as keeping information from them that they need to know.  Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be.  It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules.  Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial. 

Often these instructions are repeated in one form or another several times throughout the trial.  This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation.  While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach.  Prospective juries are given a questionnaire with a cover sheet that states in part: 

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules.  There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings.  This may need to be a more frequent and publicized occurrence to stem the growing problem.  California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor.  See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6).  In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless.  See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122.  If anything, the bill does not go far enough.  For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction.  However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules.  This too is important.  While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick.  Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law.  The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt.  The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors.  Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations.  This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations.  There, the Indiana Supreme Court wrote:  "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation."  Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009).  Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors.  While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct. 

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco.  

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco.  

The U.S. Supreme Court in Shute v. Carnival Cruise Lines, 499 U.S. 585 (1991) held the Shutes, who were injured on a Carnival Cruise ship in waters off Mexico, must file suit in Florida pursuant to the forum selection provision printed on the back of their ticket.   The Shutes filed suit in their home state of Washington.  The cruise ship departed from California.  Shute is still one of the most far reaching holdings enforcing adhesion-like forum selection provisions.  The Shutes also had a strong argument that they lacked notice of the forum selection/choice of law provisions.  

It is well known that manufacturers do not have to make the safest possible products.  Rather, manufacturers are prohibited from making unreasonably dangerous products.  And one of the biggest factors in determining whether or not a product is unreasonably dangerous is the existence of a feasible alternative design.  Concerning for manufacturers though, the First Circuit just upheld a verdict against a manufacturer even though the plaintiff failed to prove the existence of a feasible alternative design.    

In Osorio v. One World Tech., Inc., No. 10-1824 (1st Cir. Oct. 5, 2011), the plaintiff sued the maker of a table saw after he cut his arm while using the saw.  The plaintiff argued that the saw should have contained a mechanism that stops and retracts the blade when the blade comes into contact with flesh.  To bolster this argument, the plaintiff brought the inventor of the mechanism to testify on his behalf. 

The manufacturer argued that the mechanism is not a feasible alternative design.  The mechanism makes the saw larger and heavier, which would substantially change the use of the light, portable saw.  Also, the mechanism has a tendency to retract when the blade gets wet, meaning that it cannot be used outside.   Further, each time the blade retracts, the blade must be replaced.  Additionally, the mechanism makes the $179 saw almost twice as expensive, adding $150 to the retail price.  It is no surprise then that none of the major saw manufacturers use the mechanism. 

Even after hearing all of this information, the jury found that the saw was defective and awarded the plaintiff $1.5 million.  The manufacturer appealed, arguing that the plaintiff failed to prove the existence of a feasible alternative design.  On appeal, the First Circuit determined that a plaintiff does not have to prove the existence of a feasible alternative design to win a design defect claim.  Rather, the existence of a feasible alternative design is just one factor in the "unreasonably dangerous" determination.  As such, the court upheld the jury's verdict. 

If you're shaking your head, you're not alone.  While this case may not sit well with manufacturers, at least it provides a reminder that they should think twice before trying design defect cases in states where plaintiffs do not have to prove the existence of a feasible alternative design.   

William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.  

An unnamed company has taken the first step in challenging the Consumer Product Safety Commission's (CPSC) online complaint database.  No information is currently listed in Pacer, the federal court filing system, but the Washington Post reported that a complaint was filed Monday in Maryland District Court.  The company that filed the suit is listed as "Company Doe" to protect its name – the exact reason that it filed the complaint in the first place. 

On August 14, 2008, the Consumer Product Safety Improvement Act became law and mandated that the CPSC create an online portal for customers to post complaints about products that can either injure children or pose fire, electrical, chemical, or mechanical hazards.  The Act sought to provide consumers with timely information about potentially unsafe products, so consumers would not have to wait for a recall to get the information.  However, the database has been criticized because of accuracy issues and the burden it places on manufacturers. 

Anyone can file a report in the database, found at www.SaferProducts.gov. , but a report is not eligible for publication unless it contains: (1) a description of the product; (2) the name of the manufacturer; (3) a description of the injury or risk of injury caused by the product; (4) the date that the incident occurred or risk of injury was discovered; (5) the type of reporter (consumer, agency, child service provider, etc.); (6) the reporter's name and address (this is not published); (7) the reporter's acknowledgement that the report is true and accurate; and (8) whether or not the reporter wants the information published. 

Once a report is filed online, the CPSC has five days to review it before sending it to the manufacturer.  However, the CPSC's "review" only entails ensuring that the minimum publication requirements have been met; the CPSC does not conduct any type of fact-finding investigation.  Instead, the burden is placed on the manufacturer to prove that the report is untrue, and it has just ten days to prove it.   If a report ends up being published, manufacturers can have their comments published with the report, but the CPSC does not always process comments in time to publish them the same day the report is published, and posting a comment is little consolation if a report is untrue. 

Since its inception, the database has been criticized for not requiring more information to reduce inaccuracies, such as a product serial number.  And the fact that manufacturers have to conduct all of the fact-finding and essentially prove themselves innocent seems a bit backwards considering anyone with access to a computer can file a report. 

Given these circumstances, it was only a matter of time before a company stepped up and challenged the system.  Consistent with argument that the database needlessly harms the reputation of manufacturers, the company has filed the lawsuit anonymously.  Whether or not the court will allow the company to remain "Company Doe" presents another question altogether.  But either way, this case could have major consequences for the CPSC database, and is definitely one to watch. 

William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is a law clerk in the Phoenix office of Bowman and Brooke LLP.