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We refuse to end the year on a bad note, so we’ll talk about a case that’s good – not good enough to make tomorrow’s top-ten list, but good enough to slam the door shut on 2020 with a reasonable amount of cheer.

Vicente v. Johnson & Johnson, 2020 WL 7586907 (D.N.J. Dec. 21, 2020), is a personal injury case about orthopedic screws and plates used by surgeons trying to put the plaintiff back together after a motorcycle accident. The plaintiff underwent multiple procedures, experienced pain, and ultimately discovered that some of the screws and plates had failed. Those hardware failures prompted the plaintiff to file a lawsuit in New Jersey state court against the manufacturers, the hospital, etc. Then the defendants removed to federal court. Then the plaintiff amended the complaint and added some parties. Then the manufacturing defendants moved to dismiss the complaint. The claims at issue were design defect, manufacturing defect, inadequate warning, and breach of express and implied warranties.

The New Jersey Product Liability Act (NJPLA) governed this case. The first issue was whether the implied warranty claim case was subsumed by the NJPLA. It obviously seemed so, since the claim was physical harm from a product. But the plaintiff argued that the warranty claim was not subsumed because the claim attacked, not product defects, but affirmative misrepresentations regarding the safety of the product. The problem for the plaintiff was that his warranty claim said that the product did not conform to the warranties “in that its design was flawed.” To the Vicente court, this was a “classic products liability-type claim,” and the plaintiff was attempting “to repackage a design defect claim as one for breach of implied warranty.” The court saw no point to that (neither do we), and dismissed the implied warranty claim.

Next up was the design defect claim. The plaintiff did not propose a safer alternative design and did not offer a risk-benefit analysis in an effort to demonstrate defect. Instead, the plaintiff staked his design defect claim on the consumer expectations test. The defendants argued that the consumer expectations test was inapplicable here because the device at issue was complex and outside the experience of an ordinary consumer. The Vicente court ended up agreeing with the defendant that the consumer expectations “shortcut” was unavailable. An average consumer “would not know how long surgical screws maintain their structure after nonunion of a fracture.” Absent alternative design or a risk-benefit analysis, the design defect claim had to be dismissed. (The issue of the applicability or inapplicability of the consumer expectations test to a design defect claim also shows up in a Florida case in tomorrow’s Best-of post.)

The problem with the manufacturing defect claim was the usual one; no manufacturing defect was alleged. The plaintiff attempted to avail himself of “the intermediate product defect test.” What is that? Well it cannot be res ipsa loquitur, because the New Jersey Supreme Court held in the prior century that such theory had no place in a strict product liability case. The intermediate product defect test is different, even if only slightly. It permits an inference of defect when the harm “was of a kind that ordinarily occurs as a result of a product defect” and “was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.” The Vicente court called this another “shortcut” just like the plaintiff’s reliance on consumer expectations, and just as invalid. The plaintiff simply had not alleged either prong of the intermediate product defect test. In reality, all that the plaintiff was saying was that “the product had a manufacturing defect because it deviated from Defendant’s safety claims.” That might be some kind of claim (more on that later) but it is certainly not a manufacturing defect claim. Or, to borrow the Vicente court’s elegant language, the plaintiff’s contentions “fall short, or perhaps somewhat to the side, of the intermediate product test.”

The failure to warn claim was clothed in hopelessly general and vague language: “The aforesaid product surgically implanted in plaintiff’s body was due to inadequate warning because the defendants knew or should have known there existed a serious risk that the device could fail after surgery, hereby giving rise to pain and suffering, debilitation, and the need for further surgeries.” The court held that such a “blanket assertion” did not “pass the plausibility test.” Nor did the complaint plead anything to rebut New Jersey’s statutory presumption that a warning approved by the FDA is adequate. (This case involved 510(k) products, so the application of the NJPLA presumption of adequacy is noteworthy.)

Finally, the express warranty claim flunked because the complaint contained “ no allegation identifying the language or source of any alleged express warranty.” In other words, the express warranty claim was makeweight. It was a waste of space and time.

2020 was not a good year for wasting space and time.

The DDL blog offers a tip of the cyber hat to Terry Henry at Blank Rome for sending the Vicente case to us.


The tail-end of the year is decorated with all sorts of top-ten lists. Except for Bexis’s magnificent, joyous, life-affirming list of top ten DDL cases, these lists ring hollow against the vast cacophony of this wretched year. But there were some entertainments that temporarily distracted us from COVID-19’s predations and deprivations.

Let’s face it: we were looking to escape plaguey reality. A couple of documentaries allowed us to immerse ourselves in other, better times. The Last Dance brought us back to Michael Jordan’s remarkable reign atop the sports world. It might be a good long while before we see another team win six NBA championships. But the single most transcendent moment of the series was when Jordan paused to recognize the emotional cost of his single-minded determination. And then he got emotional. And then he called for a break. And because it was Jordan, the filming did, indeed, stop.

Back in the late 1970s, we leaned toward the ‘disco sucks’ camp. (Though we did go to a Trammps concert in 1977.) We saw, but did not love, Saturday Night Fever. We heard The Bee Gees (they were utterly unavoidable back then) but had little use for the drum loops and falsettos. It is possible we were wrong. The Bee Gees documentary on HBO, How Can You Mend a Broken Heart, shows how supremely gifted they were. They had several non-disco hits before Saturday Night Fever, such as New York Mining Disaster 1941, Massachusetts, and Lonely Days. Listen here to the harmony of The Bee Gees on Fanny (Be Tender with My Love). Bliss. Then there are the various backstories. Music entrepreneur Robert Stigwood was an important factor in the band’s enormous success, and we once worked for a law firm that represented him. What a fascinating career! (We mean Stigwood’s, not ours.) The Bee Gees’ music sounds much better to our ears after all these years. It seems innocent and uplifting. At the end of the documentary, we get a poignant, unforgettable reflection by Barry Gibb, the lone surviving brother, that he would give up all the hits to have Maurice, Robin, and Andy back. That heartfelt sorrow truly registers in this year of loss.

The Crown has been splendid all along, but the most recent season at last covers ground that is familiar to us. We don’t remember Churchill, but we do remember Thatcher. We don’t remember Princess Margaret’s travails with Lord Snowdon, but we do remember the fractured fairy tale that was the Charles and Diana story. We hear that the Royals hated this season of The Crown. It is not hard to see why. There have even been lists of the moments in the show that most make you want to punch the Prince in the face. (All that being said, did you see the Queen’s Christmas speech? How is it that she manages to convey such dignity and compassion, whilst our elected politicians deliver inane divisiveness?)

The Good Place managed, in its final season, to be both funny and profound. We were already fans. But the deal was sealed for us when a character came up with an ethical solution to the afterlife by consulting the work of our college thesis adviser, the late Judith Shklar. In her masterful book, Ordinary Vices, Shklar argued that we should put cruelty first among all vices. First as in worst. That is, surprisingly, a modern conception. Our ancestors thought vices such as pride and sloth were worse, because they were offenses against God. Cruelty hurts only other humans. But now we know that “only” was misplaced. Be kind, people.

(The only show that supplied us with more laughs than The Good Place was What We Do in the Shadows. Vampires in Staten Island ends up being a strangely plausible premise. But if we list WWDITS, that would add up to eleven. That would be cheating. So we won’t do that.)

There was one podcast that entertained us mightily. In Dead Eyes, the comedian-actor Connor Ratliff is obsessed with his firing almost 20 years ago from the Band of Brothers miniseries. Ratliff thought he got the part, but then Executive Producer Tom Hanks – the nicest guy in Hollywood (or second nicest, after Henry Winkler) – forced Ratliff to reaudition because of his “dead eyes.” The reaudition did not go well. Ratliff has gone on to a successful entertainment career, but this podcast might be the best thing he has done, and one of the best podcasts that anyone has done. Many interesting guests show up on this podcast, including Jon Hamm, Aimee Mann, Seth Rogen, and the guy who ended up getting the part denied to Ratliff.

We’ll add to the pile of praise for Small Axes, which is already sky-high. If you have not already fired up Amazon Prime and watched Steve McQueen’s five films about the West Indian experience in London, fix that right now. This achievement is as good as you’ve heard. Lover’s Rock (which opened up this year’s New York Film Festival) brings us into a house party that feels both strange and familiar, distant and intimate. Mangrove’s second half is a riveting courtroom drama, in which the clients outperform their lawyers.

The Mandalorian. The last scene of the season 2 finale was everything we could have hoped for from the Star Wars universe. Dear readers, we admit we wept.

Some things actually improved as a result of Covid-19 and the requisite social distancing. Think of the NFL Draft, where we got to see the draftees at home with their families, reveling in the major life change about to visit them. Or remember the glimpses we got of coaches in their homes. Cardinals coach Cliff Klingsbury’s modernist residence in Arizona inspired a huge outpouring of house envy. And we were treated to the sight of a dog lounging on a kitchen chair in Bill Belichick’s Nantucket home. Just as the pandemic was shifting into overdrive, the NFL Draft gave us round after round of feel-good moments. They were needed.

We are not choosing political sides (at least not here, not now, and not in your face) by praising the Democratic Convention. What we are actually praising is the roll call of states. That exercise is usually an endless, corny parade of politicos strutting to a microphone in a convention hall of funny-hat wearing, self-important mediocrities bellowing their state’s sketchy virtues. But this year, there was no convention hall. There was, instead, a wonderful pageant of America, as we got views of people and locales scattered around this beautiful country. An Alabama state representative announced her state’s delegation count as she stood in front of the Edmund Pettus bridge, where the late John Lewis survived a brutal police beating. Pennsylvania Senator Bob Casey stood in front of Joe Biden’s Scranton birthplace. Puerto Rico’s delegate spoke in Spanish and reminded the country that Puerto Ricans are American citizens. And did anyone in this last, rotten political season make an argument nearly as compelling as Rhode Island did for its delicious calamari?

We have been watching Jeopardy since the 1960s, when Art Fleming hosted. Alex Trebek took over in 1984, and we stuck with him. We have been told that around 6:55 pm every weekday we start to resemble the Rainman and his anxiety about seeing the daily episode of The People’s Court. Only we don’t bleat about Judge Wapner; we need our daily dose of Jeopardy. It’s been a constant. To be sure, the answer-in-the-form-of-a-question rule is silly, but what other show made showing off knowledge so much fun? We’ve never had the courage to try out for the show, but we have several friends who have, and who have done well. This last season was especially poignant, with contestants thanking Alex for what he meant to them (one champion, Burt Thakur, teared up and told Alex “Here’s a true story, man. I learned English because of you.”) and honoring Alex’s brave, and ultimately unwinnable, battle with pancreatic cancer. In a year filled with loss, Jeopardy showed humanity attaining some kind of grace in the face of such loss.

We hope that you managed to scratch out as much happiness as possible from 2020. We hope that you won’t have to scratch nearly as hard in 2021. Happy New Year.