Friday Links

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 As you know, we here at Abnormal Use adore legally themed comic book covers, so we had to share the cover of Litigious Tales pictured above. It features Groot, a member of The Guardians of the Galaxy, who received massive attention in the film of the same name released this past summer. (If you didn’t see it, see it out. Seriously). The joke is that Groot can only say the phrase “I am Groot.” So, of course, what kind of lawyer could he make? The art is by Francesco Francavilla, and it was apparently prepared for Marvel’s 25th anniversary issue (according to Francavilla’s Tumblr). Thanks to reader Ryan Steans for the tip!

Mental Floss offers us “11 Legal Cases with Crazy Names.” They found some good ones, so take a look.

Sigh. Just two more months of Westlaw Classic. Alas.

Thanks to everyone who came out to see Abnormal Use writers Nick Farr and Jim Dedman present their McDonald’s hot coffee CLE in Charlotte this week!

Court Dismisses Dictator’s Lawsuit Because Freedom

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Manuel Noriega’s lawsuit against Activision, about which we previously blogged, has come to an end.  To recap, Noriega’s complaint alleged, among other things, that Activision “damaged his reputation” by portraying him “as a kidnapper, murderer, and enemy of the state” in its Call of Duty: Black Ops II video game.  Naturally, Activision hired former New York mayor Rudolph Giuliani of Bracewell and Giuliani to defend against the former dictator’s allegations of misconduct.  Giuliani promptly moved to dismiss the lawsuit.

Noriega, represented by the Chicago firm of Corboy and Demetrio, argued that the motion should be denied based on the No Doubt v. Activision case.  The trial court, Judge Fahey presiding, disagreed.  Judge Fahey found that “Noriega’s right of publicity is outweighed by defendants’ First Amendment right to free expression.” (emphasis added). Giuliani agreed with the Court’s decision and added that this seemingly small win was really a global win for freedom everywhere:

 This was an absurd lawsuit from the very beginning and we’re gratified that in the end a notorious criminal didn’t win. This is not just a win for the makers of ‘Call of Duty,’ but is a victory for works of art across the entertainment and publishing industries throughout the world.

In our humble opinion, this lawsuit is the civil litigation version of the Miracle on Ice -  former Panamanian dictator versus former New York mayor Giuliani, and Giuliani prevails based on freedom.  To borrow from one of Giuliani’s speeches, “[n]ow we understand much more clearly. why people from all over the world want to come to New York and to America. It’s called freedom.”

(Hat Tip: Courthouse News Service).

Judge Orders Cease Fire in Battle of the Dukes

John Wayne

The legal dispute between Duke University and the estate of John Wayne, upon which we previously reported, has ended – for now.  The two sides have argued for years over the naming of certain goods and services. Most recently, John Wayne’s estate sued Duke University in federal Court in California seeking a judgment declaring that it could use The Duke name to market its own brand of whiskey. The trial court dismissed the action for want of jurisdiction after examining the “effects test” factors, which turn on whether a defendant aimed its wrongful conduct at California, whether the harm was likely to be suffered in the state, et cetera.  Judge Carter found that Duke University was aware of the Duke’s family’s presence in the state of California, but the Duke’s family was unable to show that Duke University intentionally directed its conduct at the state of California by filing oppositions to trademarks in the state of Virginia.

We doubt that we’ve seen the end of this dispute.  As John Wayne himself once said, “[a]ll battles are fought by scared men who’d rather be someplace else.”  This battle was no different.

(Hat Tip: Hollywood Reporter).

Don’t Forget! Abnormal Use To Present McDonald’s Hot Coffee CLE In Charlotte Tomorrow!

Don’t forget, folks! GWB attorneys and Abnormal Use bloggers Jim Dedman and Nick Farr will be presenting a CLE for the Mecklenburg County Bar Association on Wednesday, November 19th in Charlotte, North Carolina. That’s tomorrow afternoon! Of course, their topic is “20 Years Later: The Truth Behind the McDonald’s Hot Coffee Trial,” a program which will provide some surprising revelations into the well known trial. It will be held at the Olde Mecklenburg Brewery’s brand new facility. Here’s the good news: You can still register! You can do so by clicking here.

We hope to see you there.

It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

Friday Links

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You know, we here at Abnormal Use have been doing this blogging thing for nearly five years now, can you believe it? For most of that time, we’ve tried to find legally themed comic book covers to post on Fridays. As the years go by, this has become a much more difficult task. Occasionally, we plug in search terms into various comic book websites to locate such covers. Well, this week, we input the search term “witness” into such a site, and we found the cover above, that of The Witness #1, published way, way back in 1948. This, we feel, technically qualifies as a legally themed comic book cover, if only because of the use of the word witness. All we can say: The Witness character is certainly dedicated to maximum verbosity.

Yes, in case you were wondering, we here at Abnormal Use have been listening to the Serial podcast. We recommend it.

Happy belated birthday to Georgia’s Judge Dillard.

Once you become a lawyer, you get lots of call from friends and acquaintances seeking free legal advice. Thus, our favorite tweet of the week is:

“Franklin & Bash” Cancelled

Oh, no! TNT has cancelled “Franklin & Bash,” the legal comedy starring Mark-Paul Gosselaar and Breckin Meyer. Oh, the humanity!

To be honest, we never really watched “Franklin & Bash,” but we do have a connection of sorts to the show.

Way, way back in May of 2011, we here at Abnormal Use interviewed the two leads in the show. Well, that’s probably overstating it.

Let’s try again: Way, way back in May of 2011, we here at Abnormal Use participated in two press conference calls, each with a lead of the show.

We were able to ask one question of Gosselaar:

Abnormal Use:  Hey, Mark-Paul.

Gosselaar:  Hey, there.

AU:  Our readership is made up primarily of lawyers, and I know that you’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role.

Gosselaar:  I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did “Raising The Bar.”  Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question.

But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais, was a defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

We were also able to ask a question of two of Meyer:

Abnormal Use:  Hi, Breckin.

Meyer:  Hey, how’s it going?

AU:  Good. Our readership is made up primarily of lawyers…

Meyer:  Okay.

AU:  . . . I wonder if I were a client of Franklin and Bash, why would I want your character, Jared, to represent me?

Meyer:  Well, the good thing is with Franklin and Bash, you get both Franklin and Bash. . . .  Jared’s a kid who grew up with a silver spoon in his mouth. His father was a — still is a high powered litigator, and he rebelled against that by not wanting to be a lawyer, but eventually had to accept that it was his calling, but if he’s going to do it he’s going to do it on his own terms. And I think you’d definitely — you’d get lawyering like you hadn’t seen before. How about that?

AU:  Okay. And your character’s been described as quick-witted and scrappy. Do you have anything to add to that description?

Meyer:  Really kind of almost off the chart remarkably good looking. That — I mean that’s not me, that what — I mean, that’s what I’ve heard. . . .Yes, so that’s how I’d describe it.

Those were the days. Goodbye, “Franklin & Bash.”

(We also reviewed the pilot episode here.).

The Rolling Stones Are Losing Their Insurance Battle

There really is no other way to begin this blog post than with the expected and obvious: the Rolling Stones have recently learned that “You Can’t Always Get What You Want.”  Or perhaps noting that they “(Can’t Get No) Satisfaction” would be apropos, as well.  But we digress. . . .  According to various media outlets, including the Chicago Sun Times, the iconic band’s recent insurance claim—a $12.7 million claim—was denied by insurance underwriters.  The Stones submitted the claim for reimbursement for concerts they were forced to cancel in Australia and New Zealand after lead singer’s Mick Jagger’s girlfriend L’Wren Scott committed suicide in March of this year.

Last month, the underwriters petitioned the federal court in Utah, Scott’s native state, to permit them to gather testimony and documents from Scott’s brother.  A federal judge granted the request a week later.  After the underwriters’ denied the claim, the Stones filed suit in the friendly confines of London.   Here is the crux of the issue: The $23.9 million insurance policy issued to the band purported to provide coverage for the possibility of concerts being canceled due to the death of the band’s family members.  Jagger and Scott’s lack of a legal union was not the reason for the insurance underwriters’ denial—indeed, Scott was apparently covered under the policy as Jagger’s longtime girlfriend.  Rather, the insurance underwriters denied coverage based on their contention that Scott suffered from a pre-existing medical and/or mental condition that voided coverage for her death under the policy.  The insurance company is also questioning Jagger’s claim that because of his depression following her death, he was advised by doctors not to perform for at least a month thereafter.

We here at Abnormal Use are somewhat surprised that it was the pre-existing condition issue which was the underwriters’ basis for denial and are curious as to whether the policy failed to include a suicide exclusion or intentional act exclusion.  In any event, it seems clear the band will not give up its fight easily—in fact, we can envision the Stones’ singing “Start Me Up” upon receiving news of the underwriters’ decision and subsequent lawsuit.  We will certainly follow up on the claim, the policy language and the underwriters’ legal reasoning as the case progresses.  In the meantime, we invite our readers to “Shine A Light” on the underwriters’ denial and insight or predictions regarding the case as it moves forward.

Veterans Day

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

To commemorate the occasion, we direct your attention to the cover of Army War Heroes #1, published way, way back in 1963.

Thank you again to our veterans for their service.

Four Loko Manufacturer Not Immune From Suit As Manufacturer of Alcohol

The father of a Four Loko drinker who was shot and killed by the police has been granted a second chance to pursue his claims against the drink manufacturer.  After the death of Ron Fiorini, a 23-year old college student, Fiorini’s father, Brett Fiorini, filed suit against City Brewing Company, LLC in the Superior Court of Fresno County (CA) and asserted negligence and strict liability claims.  Specifically, Fiorini alleged that Four Loko’s combination of alcohol and caffeine, as well as other stimulants, was unreasonably dangerous and increased the risk of violent and other high-risk behavior.  The circuit court granted City Brewing’s motion for summary judgment on the grounds that the company was protected by the civil immunity in California’s dram shop statutes.  Last week, a California appellate court reversed the judgment in favor of City Brewing.  The case is Fiorini v. City Brewing Co., LLC, No. F067045 (Cal. App. 5th Nov. 7, 2014).

We have written before on Four Loko lawsuits, but factually, this one offers a few new twists.  On the day of Fiorini’s death, he and some friends purchased two cans of Four Loko and a quantity of beer from a convenience store.  Thereafter, Fiorini drank the Four Loko and some beer and began acting agitated and disoriented.  Fiorini became delusional, grabbed a shotgun, and started shooting at a fence, exclaiming that “they” were coming for him.  When police arrived, Fiorini wielded the gun on the front porch and police opened fire.  The crux of the lawsuit is that had the Four Loko not contained caffeine and other stimulants, Fiorini would have lost consciousness due to his level of alcohol consumption.  Instead, he remained awake in his disoriented state.

On appeal, City Brewing argued that the trial court correctly granted its motion for summary judgment based on a California statute which protects the manufacturers of alcohol from liabilty for common consumer products, i.e. alcohol.  The Court, however, held that an alcoholic energy drink, which combines alcohol and caffeine, is not a common consumer product for the purpose of statutory immunity.

While we here at Abnormal Use recognize that the alcoholic energy drink is a fairly new phenomenon, we question whether the risks are not common knowledge.  People know the risks of alcohol.  They know the risks of caffeine.  It doesn’t take a chemist to presume what the risks may be of combining those two items.  After all, it is what probably drives most people to purchase Four Loko in the first place.  The Court rejected this so-called “deconstruction” approach, but it is certainly an approach we would have considered taking.

Now that the case has been remanded back to the trial court, we are interested to see what a jury may do with these claims.  Four Loko has had its share of bad press over the last few years.  It is now time to see whether that negative reputation holds up to a legal analysis.