DUI cases do not show up on this blog often. Or ever. We did a quick search and came up dry. That fact is hardly surprising. After all, what does DUI have to do with drug and device law, or product liability for that matter?   Nor do we deal with DUI law in our everyday practice. Occasionally we might get a broadcast email asking for the name of a good DUI defense attorney, inevitably making us feel sorry for some anonymous, unfortunate, and/or tipsy soul. But early in our career we were loaned out to the Los Angeles City Attorney’s office, where DUI cases were on the bill of fare, along with shoplifting, solicitation of prostitution, wienie waggers (don’t ask), and assaults. DUI cases were among the most interesting assignments because they involved a little bit of science and a lot of creative tale-spinning and lawyering. We learned about Breathalyzers/Intoximeters, nystagmus, and Field Sobriety Tests (FSTs) (walk a straight line heel to toe, say the alphabet backwards -- which we cannot do when we are stone-cold sober -- and touch your nose whilst closing one’s eyes, etc).
 
Police officers in California (and throughout much of the West Coast) call a DUI a “deuce.” The provenance of that appellation is unclear. Some think it comes from the various California criminal code DUI sections, which ended in a 2. Some half-jokingly think it refers to the inevitable claim of DUI defendants that they had consumed only “two beers.” A blood alcohol concentration (BAC) measurement in excess of the legal maximum makes you presumptively guilty of a DUI. But it is possible to be found guilty even without that evidence if there is good ocular evidence of bad driving, an aroma of alcohol, and failure of FSTs. That being said, a high BAC is usually such damning evidence that it virtually compels a guilty plea.
 
That is what happened to a couple of guys from New Jersey named Johnson and Aguaiza. But here’s the twist, and the reason why you are reading about this case on the DDL blog: after pleading guilty in their criminal cases, those guys subsequently brought a product liability action against the company that made the breath-testing device used to establish their BACs as being in excess of .08%. The case is called Johnson and Aguaiza v. Draeger Safety Diagnostics, Inc., Civil Action No. 13-2439 (JLL) (D. N.J. July 19, 2013). The slip opinion is here.  The plaintiffs claimed that “the Alcotest 7110 contains latent design defects in that it is a piece of respiratory equipment that is not standardized at frequent intervals and there is no provision for calibration of its pulmonary reporting apparatus.” Slip op. at 2. It is standard operating procedure for the defendant in a DUI criminal case to attack the calibration of the machine measuring the BAC, but this is the first time we have heard of that issue spilling over into a product liability case.  Further, this was not just a run of the mill product liability case. The plaintiffs styled their complaint as a class action, with the class consisting of all persons arrested for a deuce in New Jersey who blew into the Alcotest 7110 and were subsequently convicted.
 
The plaintiffs alleged three claims: (1) negligence, (2) strict tort liability; and (3) common law fraud. The defendant moved to dismiss these causes of action. The court granted the defense motion. We will decant the court’s ruling, applying our version of FSTs.
 
Walk a Straight Line
 
Any claim in New Jersey for harm caused by a product is governed by New Jersey’s Product Liability Act (PLA). Under the PLA there are only three causes of action: (1) manufacturing defect; (2) failure to warn; and (3) design defect. Applying straightforward reasoning, the court held that the plaintiffs’ claim for common law negligence did not fit into any of those PLA categories. The plaintiffs weaved around that little problem by arguing that the PLA did not apply to their case, citing cases involving defendants that either had designed but not sold the product or that had rendered a service without actually selling the product. But in this case it was clear that the defendant made and sold the product that the plaintiffs claimed had harmed them. Thus, the negligence claim was subsumed by the PLA, it did not work, and it was poured down the drain with prejudice.
 
Speak without Slurring
 
The plaintiffs conceded that their claim for strict liability was embraced by the PLA. Whether or not the plaintiffs conceded it, the court applied TwIqbal, which requires plaintiffs to set forth facts establishing a plausible theory of liability. Here, the plaintiffs' theory was that the defective Alcotest forced them to face “prosecution with tainted evidence.” Slip op. at 10. Let’s pretend for the moment that such a theory could conceivably hold water. New Jersey law requires the plaintiff to show “the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiffs’ harm.” Slip op. at 9. The plaintiffs did not allege such a reasonable alternative design. Perhaps more fundamentally, the harm alleged by the plaintiffs was unprecedented and just plain weird. The PLA defines harm to require some sort of physical injury. No such physical injury was plausibly alleged.
 
Close Your Eyes and Touch Your Nose
 
The plaintiffs’ fraud claim focused on representations made by one of the defendant’s corporate officers during testimony to governmental bodies at public hearings about the functioning of the Alcotest 7110. But for a statement to be fraudulent it is not enough that it simply turned out not to be true (even assuming that was the case). Rather, the speaker must have known at the time that the statement was false. Here, the court saw no evidence of such knowledge. Under Fed. R. Civ. P 9(b)’s particularity requirement for fraud allegations, it is not enough for the plaintiff to offer the bare allegation that the speaker “must have known” of the fraud given his or her position in the company. Moreover, there was no allegation that the plaintiffs relied on the statements by the corporate officer. And how could they make such an allegation? “I felt it safe to drive the highways and byways of New Jersey with impunity because I depended on the calibrations behind the BAC measurements"? Finally – and this is the part that comes closest to our more typical topics – the court ruled that “to the extent Plaintiffs’ common law fraud is based upon statements allegedly made by Defendant Draeger to the FDA, such claim would be preempted by federal law.” Slip op. at 14, citingBuckman. Aha!  Now you cannot go accusing today’s post of taking you on a frolic and detour. This heady little DUI/product liability case turns out to be a mainstream application of Buckman preemption.
 
We are not exactly touching, or holding, our nose over this opinion. In fact, it has a well-balanced, complex bouquet.  But the one disappointment is that the court gave the plaintiffs leave to amend the complaint and replead the strict liability and fraud claims. To our taste buds, those claims are stale beer. The plaintiffs did, after all, plead guilty. We do not know if the plaintiffs had to render some sort of allocution during their guilty pleas, stating under oath the facts showing their actual guilt, but even without such allocution it seems that a criminal conviction should have preclusive effect.  The claims are all wet.  Indeed, the defendant had a pretty good argument in favor of sanctions against the plaintiffs for pursuing causes of action lacking any basis in current New Jersey law. The court, probably acting under the influence of generosity, denied that request for sanctions. But to give leave to amend takes generosity to a fault. We fear that the court is being an enabler.  Still, the court seemed to indicate skepticism that any such amendment could rescue the plaintiffs’ case, underlining that this was the plaintiffs’ “final” opportunity, that the defendant’s request for sanctions was denied without prejudice, and explicitly warning the plaintiffs that a prayer for punitive damages was almost certainly a loser because any claim that the defendant made misrepresentations to an agency (the exception to the rule against punitive damages in PLA cases) would be preempted by Buckman. Slip op. at 16 & n. 8. This DUI product liability case really does turn our to be a deuce by applying Buckman twice. That sort of reasoning calls for a (sober) celebration.
 
Here’s a tip of the cyber hat to Terry Henry of Blank Rome, who brought this vintage quality case to our attention.