Friday Links

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Since this is our last edition of Friday Links before Christmas, we thought we’d share the cover of Archie’s Giant Series Magazine #216. We’re not entirely certain when this particular issue was published, but it seems appropriate (especially with Archie’s looming 75th birthday). Enjoy.

Today is the last day you can vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support. The polls close at the end of the business day today.

Today, by the way, is our editor Jim Dedman’s birthday.

The Lawyerist site – a blog we’ve linked many times over the years – is starting a new podcast. For more information, click here.

Our favorite tweet of late simply has to be this one:

Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges

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When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.

Laser Beam Weapons A Real Thing Now?

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Folks, reportedly, the Navy now has a laser beam weapon.  The weapon, called “LaWS”, was recently test-fired from the USS Ponce, and it apparently “hit and destroyed targets mounted atop a small boat, blasted a six-foot drone from the sky, and destroyed other moving targets.” The project cost approximately $40 million over the past seven years.  The laser system “consists of six commercial welding lasers lashed together and aimed at the same point,” and it can purportedly hit targets up to about a mile away. Wow.

What legal implications might this new technology yield?  None yet.  However, this is awesome.  Laser beam weapons straight out of science fiction movies.  The only problem: Super villains around the world are licking their lips at the opportunity to hold the world hostage using an enormous ray gun.

Hopefully, a hero lawyer will emerge.  Groot, perhaps? Or Matt Murdock?  Or maybe one of the other comic book hero lawyers that we have covered in our regular Friday Links feature? Only time will tell

Our Favorite Posts of 2014

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day since January of 2010. That’s a lot! Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date.

So, without further ado, fill yourself with nostalgia, just as we have, and revisit these entries from 2014.

Little League Celebration: Part of the Game or Negligent Act? (Nick Farr, January 21, 2014)

Mötley Crüe Contracts to Dissolve, But Who Are They Kidding? (Nick Farr, February 3, 2014)

Man Sues After Choking During Live Fish Eating Contest At Tennessee Haunted House (Rob Green, March 12, 2014)

The Legacy of Kurt Cobain (A Law Blog’s Perspective) (Jim Dedman, April 7, 2014)

Law Day: The Great Equalizers (Mills Gallivan, May 1, 2014)

Four Decades After Its Release, “Stairway To Heaven” May Be Litigated (Jessica Waller, June 2, 2014)

The Wood-Shelving, Aged Cheese Incident (Lindsay Joyner, June 24, 2014)

R.I.P. Buckyballs (Nick Farr, July 22, 2014)

Former Oppressive Dictator Sues Video Game Creator For Portraying Him As An Oppressive Dictator (Kyle White, July 29, 2014)

20 Years of McDonald’s Hot Coffee Case Rhetoric (Nick Farr, August 12, 2014)

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony (Jim Dedman, August 13, 2014)

Social Media Perils: Attempted Impeachment By Blog Post? (Jim Dedman, October 6, 2014)

“You Drawin’ Me?” ‘Goodfella’ Sues ‘The Simpsons’ (Rob Green, November 26, 2014)

The McDonald’s Hot Coffee Case, The JFK Assassination, And Expert Witness Dr. Charles R. Baxter (Jim Dedman, December 4, 2014)

Abnormal Interviews of 2014

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2014, we published a total of ten such interviews (including some with comic book creators or beer enthusiasts). Today, we list all of our 2014 interviews and provide links back to them:

Law Professor Rory Ryan (February 4, 2014)
Kylie TenBrook, Corporate Counsel of Best Western International (May 6, 2014)
Kevin Underhill, Author of The Emergency Sasquatch Ordinance (April 14, 2014)
Keith Lee, Author of The Marble and the Sculptor: From Law School to Law Practice  (May 5, 2014)
James Daily of The Law and the Multiverse Blog (July 28, 2014)
Lawyer and She-Hulk Comic Book Writer Charles Soule (August 26, 2014)
Trial By Jury and Mistrial Movie Director Heywood Gould (September 9, 2014)
Lawyer and X-Files Actor Zachary Ansley (September 10, 2014)
Actress Roma Maffia from Disclosure and Double Jeopardy (September 24, 2014)
Daniel Hartis, Author of “Beer Lover’s The Carolinas” (October 16, 2014)

As 2014 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it. And, if you missed any of the interviews, take a look!

Friday Links

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So, now that we’re well into December, we can stray a bit from our mission to post legally themed comic book covers and instead focus on holiday themed comic book covers. Above, you’ll find the cover of Green Lantern #18, published way, way back in 1945. This is the original Green Lantern, of course, not the newer version you may have seen depicted more often in popular culture. And as for his sidekick, Doiby Dickles, we’ve written about him before here.

There is going to be a new narrative television series about the O.J. Simpson trial. Too soon, we say.

It’s Christmas, so we must direct you back to Stuart Mauney’s immortal 2011 post: “Lawsuit of the Day: Grandma’s Estate v. Santa and His Reindeer.” We can’t believe that it has been three years since we first posted it here at Abnormal Use. Don’t forget: You can follow Stuart on Twitter here.

You can still vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support.

Don’t forget: You can follow Abnormal Use on Facebook here and on Twitter here. Drop us a line sometime, will you?

Oklahoma Federal Judge To Decide Whether Ruling On The Field Stands

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The Oklahoma Class 3A high school football playoffs continued last week with a match-up between the 10-3 Frederick A. Douglass Trojans of Oklahoma City and the 13-0 Locust Grove Pirates of Locust Grove.  The stakes were high as the winning team would advance to the final four. The underdog Trojans scored a touchdown with one minute left in the game, but the referees took the touchdown away due to a sideline infraction by one of the Douglas coaches.  Unfortunately, the referees got the call wrong, as Oklahoma City’s KOCO reports: “Oklahoma high school football rules say that touchdown should have counted and the penalty should have been enforced on the next play.”

Apparently, the Oklahoma Secondary School Activities Association (OSSAA) apologized to the school for the blown call, but the school was not satisfied:

. . . Douglass went to the Oklahoma Secondary School Activities Association (OSSAA), filing an appeal and asking that the final 1:04 to be replayed. The Association apologized and acknowledged that a mistake had been made in applying the rules. The sideline infraction was a “dead ball” foul, not a “live ball” foul. But by a vote of 8-3, the Association declined to intervene on the ground that “OSSAA Board Policy does not permit protesting an official’s errors to the Board, nor do [National Federation of State High School Association (NFHS)] football rules.”

The OSSAA appeal unsuccessful, the school filed a lawsuit in federal court “asking for temporary restraining order forbidding Locust Grove from advancing and playing its scheduled semi-final game[,] . . . for the final 1:04 of its game to be replayed with the score reset to 25-20 (and with a chance, presumably, to kick an extra point).”  The school district argued:

. . . decisions of the OSSAA are subject to review under the Oklahoma Administrative Procedures Act (APA), and further that under APA substantial evidence must support an OSSAA decision. In light of the admission that the officiating crew had misunderstood the relevant rule, the District claimed that the OSSAA should have intervened in the result and ordered that the game be replayed with Douglass ahead and 1:04 left on the clock.  The District cited the NFHS rules, which state that “State Associations may intercede in the event of unusual incidents that occur before, during or after the game officials’ jurisdiction has ended . . . .”  NFHS Football Rules Book, Section 1, Article 8. The District argued that the OSSAA acted unreasonably in concluding that it could not overturn the results of the game.

The court did grant a temporary restraining order postponing the Locust Grove versus Heritage Hall semifinal pending the final ruling.  It will hear arguments shortly.

For sports fans, this is an interesting case that could create a slippery slope.  If this suit is successful, will teams have attorneys on the sideline to run to the courthouse in the event of an adverse ruling on the field?  Will referees need E&O policies?  Will we need court reporters at football games so that the record can be preserved for appeal?

We are not sure where this is going, but we will follow the story closely.

Side note:

A corollary to the main story played out as a result of a fan punching one of the officials after the game.  Apparently, the team was originally placed on probation following the game as a result, presumably rendering the legal challenge moot.  However, the OSSAA has now cleared Douglass for the playoffs if they win their legal challenge.

Federal Court Finds That Starbucks Prominently Featured in Zoolander (And More)

We here at Abnormal Use love coffee. Not just commenting upon the products liability implications of it, but drinking it, as well. Well, we couldn’t resist sharing these findings of fact from a recent federal trademark case in California, that being Starbucks Corp. v. Heller, No. CV 14–01383 (C.D. Cal. Nov. 26, 2014). Behold, as there is now federal authority on the following:

4. Starbucks is a leading purveyor of fine Arabica coffee. The company, which began in 1971 as a single, Seattle-based dry goods store, has grown to approximately 12,000 retail locations in the United States, and more than 8,000 retail locations in over 60 foreign countries.

5. Starbucks owes its worldwide success to its strong reputation for fresh-roasted specialty coffees, brewed coffees, espresso beverages and other products and services it provides. Starbucks is also widely recognized for its knowledgeable staff and superior service.

11. The Starbucks Facebook page has more than 37 million likes and more than 20 million visits. The Starbucks Twitter account has more than 6 million followers. Both platforms prominently feature the Starbucks Marks.

 

12. Numerous television programs and movies have prominently featured the Starbucks Marks, including Parks & Rec, The Voice, Ellen, Real Time, The Devil Wears Prada, Zoolander, License to Wed, The Proposal, Clueless, 127 Hours, and You’ve Got Mail.

(footnotes and citations omitted).

Accordingly, if you need a citation for the proposition that Starbucks was prominently featured in Zoolander, this is your case.

Tennessee Federal Court Denies Motion To Compel Seeking Social Media Data

As you may recall, we’ve previously noted that courts are becoming a bit more skeptical of social media discovery requests.

Well, the latest example of this trend comes from a federal court in Tennessee.

In Horsnell v. Young Men’s Christian Ass’n of Middle Tennessee, No. 3:13–1130 (M.D. Tenn. Dec. 1,2014), the Plaintiff alleged violations of FMLA and other statutes as well as a retaliation claim. The court was called upon to review certain discovery requests after the defendant filed a motion to compel. Apparently, in response to a particular discovery request, the Plaintiff produced some limited social media data. Dissatisfied with the response, the defendant filed a motion to compel, and the court found as follows:

By its motion, [Defendant] seeks an order compelling Plaintiff to provide certain nonpublic information contained on Plaintiff’s Facebook and LinkedIn accounts. Apparently, Plaintiff has produced certain limited information publically available on these two social networking sites.

This Court has previously found that an adverse party does not have a generalized right to rummage through information that a party has limited from public view on a social networking site. Rather, there must first be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, a discovering party would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account. The undersigned finds that Defendant has failed to make a sufficient threshold showing to support an order requiring Plaintiff to produce copies of nonpublic information from his Facebook and LinkedIn sites, and to that extent Defendant’s motion to compel further response to Interrogatory No. 13 is DENIED.

(quotations and citations omitted).

And that’s it. No longer a novel issue, the breadth and appropriateness of social media discovery requests is now addressed by courts in two paragraphs.

Keep this in mind, folks.

Chick-Fil-A And The Case of the Heart Attack Causing Cherry

With a fact pattern straight from a torts textbook, a Texas woman has sued Chick-Fil-A and its cherry supplier, Dell’s Maraschino Cherries Co., Inc. after the cherry on her milkshake allegedly caused her to have a heart attack.  According to a report from the New York Daily News, Cyndi Scruggs purchased a milkshake topped with whip cream and a maraschino cherry from a Chick-Fil-A restaurant in Plano, Texas.  She bit into the cherry and discovered that it allegedly “had not been properly de-pitted.”  The improperly de-pitted cherry caused her to fracture two teeth below the gum line.  To make matters worse, Scruggs developed a gum infection and sepsis which allegedly caused her heart attack.  She is seeking between $200,000 and $1 million in damages.

This is case is certainly a test in foreseeability and proximate causation.  Assuming that Scruggs did bite into a faulty cherry and that her damages allegations are valid, it seems very tenuous on the surface that a cherry could lead to a heart attack.  Nonetheless, if Scruggs can prove an unbroken chain between the cherry and the attack then she may be able to recover, as crazy as it may be.

Damages aside, we here at Abnormal Use have to question why anyone would eat the milkshake cherry in the first place.  We always thought the cherry was more visually appealing than edible. In our opinion, cherries are a Jolly Rancher flavored and should never actually be consumed.  Of course, there is no prohibition on the consumption of such things.  But shouldn’t we assume the risk of injury for biting into something that has no valid purpose on the milkshake in the first place?