Friday Links

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Okay, since the new Star Wars trailer was released this week, that’s really all we here at Abnormal Use can think about. We’re so distracted, mind you, that we just ended the previous sentence in a preposition! It’s a calamity! Have you seen it? If not, click here immediately. So, above, for this edition of Friday Links, you get the cover to Darth Vader #1, published this very year. After seeing the new trailer, we may need to investigate this new comic book series. Apologies for nerding out.

On an entirely different note, did you see that Nick Farr earned a shout-out this week over at Overlawyered? See here for that.

By the way, dear readers, did you all survive Tax Day this week?

Underage And Binge Drinking: Where is the Outrage?

Officer is Charged with Murder of a Black Man Shot in the Back.” This was the headline from The New York Times on April 8, 2015. A white police officer in North Charleston, South Carolina was caught on video shooting and killing an unarmed black man while he was running away. This was the lead story on “The Today Show” the same day. On April 9, Matt Lauer interviewed the young man who captured the video. The entire nation is engaged in a fierce debate over the appropriate use of deadly force by law enforcement. The White House created a task force, which is recommending changes to police policies. The Attorney General is visiting cities all across the country, soothing the tensions between the police and minority neighborhoods. This South Carolina incident reminds everyone of the recent use of lethal force by police in New York, Cleveland, and Ferguson, Missouri. We are outraged!

Coroner: USC Student…Died of ‘Toxic’ Blood Alcohol Level”. This was the headline from The State newspaper in Columbia, South Carolina on April 8, 2015. The University of South Carolina freshman was found dead last month at a house commonly used by a USC fraternity. According to The State, he “had a blood alcohol level more than four times the legal driving limit at the time of his death.” A toxicology report showed that he had a blood alcohol level of 0.375 percent; the coroner said this was a toxic level, which “ultimately” caused the student’s death. The coroner further commented that “There is no way to tell whether that amount of alcohol was ingested voluntarily or by force.” The coroner called the death “tragic and totally preventable.”

The coroner went on to say: “It is something that I think we see too often. Everybody’s drinking and having a good time, and somebody says, ‘Well, my friend passed out. We’ll let him sleep it off.’” Watts said, “They’re not going to sleep it off. They’re going to die. Some type of medical intervention needs to take place in a lot of these cases, and it didn’t.” The coroner concluded that a blood alcohol level that high would often be the result of binging or chugging.

Where is the outrage over this young man’s tragic death? Where is the outrage over underage drinking? Where is the outrage over binge drinking on college campuses?
There was no headline in The New York Times. There was no lead story on “The Today Show.” Matt Lauer did not interview anyone about the incident. The White House did not create a task force to study the problem of underage drinking, binge drinking on college campuses, or our collective casual attitude toward alcohol abuse. The Attorney General has not visited our state or the USC campus to express his concern.

Where is the outrage?

Where is the outrage over the fact that four out of five college students drink alcohol with about half consuming alcohol through binge drinking? Where is the outrage over the thousands of college student deaths between the ages of 18 and 24 each year from alcohol-related injuries? Where is the outrage over the students between the ages of 18 and 24 who are assaulted by another student who has been drinking? What about the students between the ages of 18 and 24 who are victims of alcohol-related sexual assault or date rape? Where is the outrage?

Where is the outrage over the fact that 34 percent of eighth-graders reported drinking in the past year? Where is the outrage that 64 percent of eighth-graders say that alcohol is easy to get?

Medical research on alcohol and the brain is clear. First, the earlier a young person starts to drink, the more likely they are to have a drinking problem later in life. Second, research shows that a teen’s brain is not fully developed until well into the twenties. Indeed, as with other teens, my 14-year-old’s brain does not have a “stop button.” The teen brain simply does not have the wiring necessary to tell them when to stop. As a result, teens act impulsively and often seek out dangerous situations, including drinking alcohol.

While college students commonly binge drink, 70 percent of binge drinking episodes involve adults age 26 years and older. Where is the outrage? Where is the outrage over the fact that about 90 percent of the alcohol consumed by youth under the age of 21 in the United States is in the form of binge drinking? Binge drinking is more common among those with household incomes of $75,000 or more than among those with lower incomes. Where is the outrage? Binge drinking costs everyone; where is the outrage over the fact that it costs the United States $223.5 billion from losses in productivity, health care, crime and other expenses?

Where is the outrage over our failure to implement evidence-based interventions to prevent binge drinking? Where is our outrage over the failure to hold alcohol retailers responsible for the harm caused by their under-age customers? Where is the outrage over our failure to consistently enforce laws against under-age drinking and alcohol-impaired driving? Where is our outrage at our failure to screen and counsel for alcohol misuse?

As with most things, it begins at home. We can make a difference by talking to our kids about alcohol. We can start by talking to our kids about alcohol facts, reasons not to drink and ways to avoid drinking in difficult situations. We can help by knowing whether our kids are at high risk for a drinking problem, knowing the warning signs of a teen drinking problem and acting promptly to get help for our kids.

Until then, where is the outrage?

Tax Day

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Okay, so above is the cover of Taxman #1, a comic series about which we literally know nothing. However, based on its title alone, it seemed appropriate for this exhausting day. We here at Abnormal Use are hopeful that you have already accomplished all of your tax related tasks today. If not, we wish you well.

Oklahoma Federal Court Denies Plaintiff’s Motion for Partial Summary Judgment in Intermingling Coupler Products Liability Case

Well, yesterday, we pointed you to an article that Kyle White had written for another publication, and today, we do the same for our editor. As you may know, we sometimes contribute content to other online ventures. Last week, our editor, Jim Dedman, saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). It’s an intermingling coupler case!

Here’s the first paragraph of the piece:

On Christmas Eve 2014, the U.S. District Court for the Western District of Oklahoma denied two motions for summary judgment arising from a product liability case involving a high-pressure quick connect coupler and its intermingled components. See Gregory v. Parker-Hannifin Corp., et. al. No. CIV-13-01031-M, 2014 WL 7365941 (W.D. Okla. December 24, 2014). After sustaining personal injuries while using the coupler while on the job at Kemper Valve and Fittings, the plaintiff filed suit in state court in Oklahoma against a series of defendants, those being Parker-Hannifin Corporation, Maxbar, Inc., H. Lorimer Corporation, and Kurt Walther GmbH & Co. KG. H. Subsequently, H. Lorimer Corporation removed the action to federal court. Following the removal, the plaintiff amended the complaint to assert to two causes of action: product liability and, in the alternative, negligence.

You can read the full article here.

South Carolina Federal Trial Court Grants Summary Judgment in Mesothelioma Case

As you may know, sometimes we here at Abnormal Use contribute content to other online ventures. Last week, our own Kyle White saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). The subject is one he knows well: asbestos jurisprudence in South Carolina.

Here’s the first two paragraphs of the piece:

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.

A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.

You can read the rest of the article here.

We encourage you to give it a read.

Friday Links

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Well, you may recall that last week we here at Abnormal Use published an April Fool’s Day post suggesting that a federal court had halted the production of the planned reboot of “Twin Peaks.” We must be clairvoyant. Just a few days later, famed director David Lynch announced that he would not longer be associated with the project (leading some to believe that the Showtime premium cable network might not go forward with the program without the auteur’s participation).

Did we do this? Are we the cause of this?

We tend to think we are not the proximate cause of this debacle, but it did cross our minds.

Alas.

Whatever the case, we’re crestfallen that we might not be able to see a new version of the series with Lynch at the helm.

By the way, did you remember that Laura Palmer’s father, Leland (played by Ray Wise in the show), is a lawyer?

The Golf Channel-Ponzi Scheme

The Golf Channel recently received some bad news after the Fifth Circuit Court of Appeals issued an unfavorable decision in Ralph Janvey, as Receiver for Stanford International Bank Limited, et al., v. The Golf Channel Incorporated, Case No. 13-11305, potentially costing The Golf Channel millions of dollars.  The Fifth Circuit reversed a lower court’s decision and ordered The Golf Channel to pay approximately $5.9 million dollars to the Receiver for Stanford International.  As one would suspect, The Golf Channel was not pleased with this decision; further, this decision raises many questions about all the companies and individuals that could potentially be exposed to the same risks that The Golf Channel was exposed to.

This order to refund money previously paid to The Golf Channel came as a result of the uncovering of a multi-billion dollar Ponzi scheme that had been orchestrated by Stanford International Bank (“Stanford”) for nearly two decades.  The Golf Channel became involved with Stanford in 2006 when it contracted to provide advertising and other promotional services for Stanford over the course of a two-year period.  Before the expiration of that two year period, the parties agreed to a four year extension.  In 2009, the SEC uncovered Stanford’s Ponzi scheme and subsequently filed suit against Stanford.  Ralph Janey was appointed to serve as the Receiver, tasked with the responsibility of taking custody of assets owned or traceable to the receivership estate which included “recovering any voidable transfers made by Stanford before going into receivership.”  That’s when the receiver pulled out his driver, let the big dog eat, and went for the green, all $5.9 million of it.

The receiver filed this suit to recover the money under Texas’ unfair trade practices act which allows creditors to void previous transactions that were fraudulent and forces the transferee to return the funds received as a result of that transaction.  However, transferees cannot be forced to return a transfer when it can be shown that: (1) the transferee took the transfer in good faith; and (2) that, in return for the transfer, it gave the debtor something of ‘reasonably equivalent value.’  Ultimately, the Fifth Circuit Court of Appeals found that The Golf Channel failed to show that its advertising services provided reasonably equivalent value from the standpoint of Stanford’s creditors.  Rather, the advertising services only served to further Stanford’s fraudulent purposes.

What’s interesting about this case is that The Golf Channel had no knowledge of the fraud being perpetrated by Stanford.  The Golf Channel was described by the district court as being “more like an innocent trade creditor than a salesman perpetrating and extending the Stanford Ponzi scheme.”  Now The Golf Channel is taking quite the hit for agreeing to provide an otherwise legitimate service for another party that turned out to have orchestrated a large scale fraud.

The question now is how far could this decision reach?  Apparently, commercial time and promotional services are not considered reasonably equivalent in value to the creditors’ money, but what else would also be tossed into this category?  Furthermore, what kind of responsibility does this decision place on companies to investigate other parties before agreeing to provide potential services?  How much will one party need to know about the party’s business practices and procedures before agreeing to a contract?  Only time will tell.

The Search For Immediate Cold Relief: Realistic Or Just Another Atlantis?

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.

Is Bell’s Brewery Bullying A Smaller Brewery Or Just Protecting Its Brand?

The craft beer community is a passionate one. Bell’s Brewery makes fantastic beer, and as you probably know, it is a popular name in the craft brew world. However, Bell’s has been garnering negative press lately for its perceived bullying of a smaller Asheville, North Carolina area brewery in a trademark dispute.

Since we here at Abnormal Use maintain offices in both of the Carolinas, we felt compelled to comment upon this matter.

At issue is a brewery named Innovation Brewing. So, where’s the dispute? The names Innovation Brewing and Bell’s Brewery are so dissimilar that no one could possibly confuse the two, right? Well, not according to Bell’s, which believes there is a risk of confusion between the companies in light of an unregistered slogan that Bell’s has used in some marketing materials: “Bottling innovation since 1985.”

Okay. Seriously, how drunk would a customer have to be before trying to buy a Bell’s IPA and accidently ordering an Innovation Brewing IPA?  “Out of this world” drunk, according to the co-founders of Innovation Brewing.  In a statement issued on Facebook, the co-founders stated: “We do not believe that any human on Earth would confuse Innovation Brewing with Bell’s Brewery, despite their slogans.”

As for that backlash from the passionate craft beer community? At least one bar in Asheville, North Carolina stopped serving Bell’s shortly after news of the legal dispute became public.  There’s also a petition started by craft beer enthusiasts called the “Secret Beer Group” asking Bell’s to drop the matter. The petition has over 5,000 supporters.  And just for good measure, there’s some gem posts on the beeradvocate.com message boards with comments such as: “I’m calling bully and [BS] on Bell’s. No one in their right mind would ever confuse this.” We’ll be keeping our eyes on this one . . . .

Texas Court Catches Case of Ebola Litigation

In a previous post, we discussed the lawsuit filed by Kaci Hickox to challenge the quarantine imposed upon her following her return from a stint in Africa during which she treated Ebola patients.  Another Ebola-related lawsuit has now been filed.  Nina Pham, the nurse who contracted Ebola in a Texas hospital, filed a complaint in the district dourt of Dallas County, Texas against Texas Health Resources, Inc. (THR) the hospital system for which she worked at the time she contracted Ebola.

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The complaint, which can be viewed here, alleges that the hospital had no plan to deal with Ebola and that the protocols in place were not adequate to protect employees against the virus despite the hospital’s advance knowledge that it should be prepared to deal with Ebola.  The thirty-six page, artfully written complaint is actually an interesting read, and it contains a number of shocking allegations.  It even has pictures!  abcNEWS outlined some of the more surprising allegations in the lawsuit here.  Some of the more interesting claims deal with the hospital allegedly violating HIPAA by releasing video footage of Nina Pham and disclosing details of her treatment without her consent.

Pham is represented by Charla Aldous and Brent Walker of the Aldous Law Firm in Dallas, Texas.  According to the docket, THR has not yet filed an answer, nor have any attorneys entered an appearance on its behalf.  According to this American Lawyer article, the hospital should have no shortage of Ebola litigation teams to select.