First Month of Summer Brings Number of Food Recalls

In a mix-up I feel certain wouldn’t have happened had the Keebler Elves been in charge of this kitchen, Campbell Soup Company recently recalled 15 million pounds of SpaghettiOs with meatballs after a cooker malfunctioned at one of the company’s plants in Paris, Texas, possibly leaving the meat undercooked. The recall accounts for all cans manufactured at the plant since December 2008 because officials are unsure exactly when the cooker malfunctioned.

The Campbell recall is just one in a series of food recalls happening this month. More recently, cereal giant Kellogg issued a voluntary recall of 28 million boxes of cereal, including its Apple Jacks, Corn Pops, Froot Loops, and Honey Smacks, due to what has been called an “uncharacteristic off-flavor and smell coming from the liner in the package.” Gives the Toucan Sam “Follow Your Nose” tagline a whole new meaning.

Rounding out the food recall news for the month of June are Kroger, Marie Callender, and Lancaster Foods bagged spinach.

Kroger grocery stores recently issued a recall of its Deluxe Chocolate Paradise Ice Cream because the packaging fails to specify that the product may contain tree nuts. Only specific stores reportedly were affected by this recall, including a number of stores in our home state of South Carolina. Marie Callender Cheesy Chicken and Rice frozen meals have been recalled following a salmonella outbreak that has reportedly sickened at least eight people. The Marie Callender recall reportedly affects approximately 800,000 of the single-serve dinners. Finally, 67,000 bags of packaged fresh spinach sold in several states along the East Coast, under names including Krisp-Pak, Lancaster Fresh, Giant, and America’s Choice, have been recalled due to a possible Listeria contamination.

Alas, the start of summer is no time to start a garden. Local farmers’ markets may be the ticket.

Ice Cream and Popcorn – Snack Foods or Hazards?

Not only are these tasty treats two of my favorite indulgences, but they are the subjects of two pending products liability actions.

On May 13, 2010, New York resident Mirko Carrea (“Carrea“) filed a lawsuit in the U.S. District Court for the Northern District of California. Carrea, on behalf of himself and a nationwide class of consumers, alleged that Dreyer’s Grand Ice Cream labels are misleading and could deceive a reasonable consumer into believing that their products are healthier than they truly are. Carrea v. Dreyer’s Ice Cream, No. 3:10-1044, amended complaint filed (N.D. Cal. May 13, 2010). The Federal Drug Administration provided that a product with more than 13 grams of total fat or 4 grams of saturated fat cannot claim to be trans-fat-free. Carrea takes issue with the fact that nothing on the Dreyer’s Drumstick ice cream cone directs a consumer to the nutritional information, even though it contains 19 grams of fat and 10 grams of saturated fat. Carrea also takes issue with the fact that the label uses the work “original” and the ingredients when this product was first made differs from the ingredients used today. Carrea seeks restitution of funds gained through this alleged “false advertising” and an injunction to stop marketing in this manner.

Another interesting suit was filed on May 3, 2010 by Agnes Mercado (“Mercado”), a New York women, who asserted that she ate two to three bags of popcorn a day for about 16 years and, as a result, developed severe lung disease that may require a lung transplant. Mercado v. ConAgra Foods Inc., et al., No. 11069/10, complaint filed (N.Y. Supreme Ct., Queens County May 3, 2010). Mercado filed suit against ConAgra and Givaudan Flavors Corp., manufacturers of the butter flavoring diacetyl added to the popcorn. She alleges that the diacetyl causes “serious debilitating” respiratory illnesses. Mercado’s complaint alleges negligence, defective design, failure to warn and breach of warranty. She is seeking $100 million in compensatory damages and punitive damages.

Two thoughts – ice cream is not “healthy” in any form and 2 to 3 bags of popcorn a day for 16 years, she must be acquaintances with the Plaintiff we wrote about in our A Can of Tuna a Day post. Both of these action will be interesting to follow to see how at least two courts address claims by Plaintiffs seeking damages for what likely are open and obvious risks?

My Next Birthday Present

My commute isn’t too bad, but I’m sure a jet pack with a maximum speed of 63 mph could speed things up a bit in the morning. Many thanks to Jim Dedman, fellow contibutor, who sent me the link to this Business Week article published on June 15, which heralds the coming of the Martin Jetpack, introduced on the Martin website as the “World’s First Practical Jetpack.” While I am initially enamored of this invention, the tagline may be a bit much.

How practical can a 535 pound rocket attached to your back be? One that would surely pull you in to the dangerous activities exclusion on your life insurance policy. To Martin’s credit, they designed it as an Ultralight, to get around any requirement for a pilot’s license. I’m not sure that harness looks so comfortable either.

Practicality aside, Martin must have great confidence in its design of the jet pack. According to the Business Week article, it seems that Martin will sell the jet pack for about $86,000, which, all things considered, doesn’t seem like a whole lot of money to relive the story of Daedalus and Icarus. Unless, of course, you turn out to be Icarus on your first trip in the jet pack. Moreover, it’s not clear what type of waiver would be available, if any, to protect Martin from a strict liability claim. See, e.g., Simeone v. Bombardier-Rotax GMBH, No. 02-4852, 2005 WL 2649312 (E.D. Pa. Oct. 12, 2005). Unless a purchaser waives a known product defect, waiver is probably not viable defense. Martin would likely have a public policy problem, i.e., their fantastic waiver drafted by their presumably fantastic lawyers would not be useful in a strict liability action.

Maybe the jet pack will be a huge success. If I read the technical data correctly, the jet pack can hover at around 8000 feet, or more than a mile and a half from the ground, which sounds ridiculously awesome. I’ll wait for the tandem jet pack, as I have no desire to die alone.

Friday Links

We’d like to comment upon this post at The Florida Legal Blog, but unfortunately, we are too scared, as it profiles Internet Solutions Corp. v. Marshall, — So.3d —-, No. SC09-272, 2010 WL 2400390 (Fla. June 17, 2010), in which the Florida Supreme Court found that posting comments on a website subjects the commenter to jurisdiction in Florida.

Two months ago, we referenced the “Last Lecture” of Baylor University Law School Professor Mark Osler, who was leaving that institution for another this year. A video of the lecture, in its entirety, has now been posted online. (Hat Tip: Osler’s Razor.).

One of us here at Abnormal Use now has a new iPhone. We couldn’t resist bragging, as the primary purpose of the purchase of the new iPhone is to be able to brag about the purchase of the new iPhone. Did we mention that?

Coolest law review article extract, ever? Here you go: “Cyber warfare is increasingly listed alongside nuclear, chemical and biological weapons as a potential weapon of mass destruction. Interest in and concerns for cyber warfare have also been prevalent for decades. War-oriented writers usually exploited such serious and expensive terms as cyber war, information war and electronic war to spread their impetuous and cheap ideas. This paper by no means devaluates serious designs and plans, studies and research, ideas and claims revolving around cyber warfare. Rather, the purpose of this paper is to analyze existing jokes, hoaxes and hypes on the so-called cyber warfare, so as to distance serious research from misleading information.” That’s from “Cyber Warfare: Jokes, Hoaxes, or Hypes” by Xingan Li of the University of Turku, at 9 The IUP Journal of Cyber Law 7-16 (February/May 2010). (Hat Tip: Media Law Prof Blog).

We had previously mentioned the Twitter Novel Contest by the State Bar of Texas, which was open to lawyers from any state and called for 140 character entries. The winning entry was from Casey Burgess of Dallas, whose 140 character novel was as follows: “Swirling death, the dark cloud descends. As he runs for his cellar, the farmer learns that sometimes pigs can fly.” For more information and results, see this post on the Texas Bar Blog.

Jury Duty

We here at Abnormal Use believe that the right to a jury trial is the cornerstone of the American legal system, and we admire those who take that civic duty seriously. After all, it is required to ensure that our legal system operates in a manner that is fair to the parties involved in the case. However, some still view jury duty as some type of necessary evil – a chore that must be endured. In fact, some writers are even making a name for themselves offering online advice on how to cheat the system and escape jury duty by misrepresenting their circumstances.

Not cool.

Case in point: In a recent post on My Two Dollars, a personal financial blog, David, the post’s author, offers some shady tips on how to evade jury duty. They are troubling. The post in question has created some buzz in the blogosphere. When you click on the post, be sure and read few of the 50 something comments. The author contends that his tips are “foolproof.”

We think not.

Do you think that if you showed up at your local courthouse three sheets into the wind, as advised in Excuse #10, that the bailiff or the judge would be happy to excuse you?

Allow me to set the scene:
Judge: “Madame clerk, please excuse juror number 32 from his service today. Also, Mr. Bailiff, please escort juror number 32 to a holding cell.”

Drunk Juror: ” Thankssss your honor. Hiccup!”

How about if you were to follow the sage advice of Excuse # 3? All you have to do is notify the court that you are a felon. Everybody knows that the best part of being a convicted felon is that you are forever excused from jury duty. Of course, the author of this post warns that the reader that one actually needs to be a felon to utilize this excuse. My personal favorite is Excuse # 16, wherein the keen financial advisor suggests that the reader simply go all “George Carlin” on the court. Something tells me that this might be the worst tip of all. I actually almost want to see someone tell the court that they can determine one’s guilt simply by looking at them and then to make sure that the judge gets the point, spout off George’s seven dirty words. Afterall, those words didn’t cause any trouble at all. [See FCC v. Pacifica Foundation, 438 U.S. 726 (1978)]

All kidding aside, the bottom line is that you should always be wary of taking legal advice from a blog, particularly a purported financial writer offering tips on how to beat the judicial system. Even the author of the “fool proof” jury duty tips post provided a disclaimer to his post in which he warned his readers as follows: ” I am not responsible if you end up in jail and on trial by a jury of your peers should you attempt any and/or all of the items listed above and get busted!”

Perhaps someday he’ll get to litigate that language.

American Red Cross Fined $16 Million for Unsafe Blood Practices

After a series of transgressions reminiscent of Kramer’s packing away gallons of his own blood inside Jerry’s Tupperware for storage at his at-home blood bank, the American Red Cross was recently fined $16 million by the FDA for failure to comply with laws and regulations related to the collection and manufacture of blood products.

Since 2003, the Red Cross has reportedly been fined more than $21 million and cited a dozen times in what have been called “chronic” blood safety violations. The American Red Cross, one of several organizations responsible for collecting and managing the country’s blood supply, reportedly accounts for approximately 43% of the blood supply in the United States. It sells blood products including red blood cells, plasma, and platelets to various health facilities.

The majority of this latest fine is reportedly related to the mismanagement of certain blood products and violations in the manufacturing process. However, in spite of these oversights, the FDA has said the organization’s blood supply appears to be safe. In fact, according to an American Red Cross spokesperson, 98% of the violations cited by the FDA occurred prior to 2008, at a time when the organization was overwhelmed with staffing cuts. Since then, according to the Red Cross, the group has made significant improvements.

In sum, it appears as though the nation’s blood supply is – and has been – safe.

Google Failed to Warn Woman Not to Walk into Oncoming Traffic

McDonald’s hot coffee suit, take 2? A California woman blindly followed Google Maps walking directions on her Blackberry, walking directly into oncoming traffic on a four-lane highway where she was struck by an approaching vehicle. She filed suit against Google, in which she seeks actual damages in excess of $100,000, punitive damages, and compensation for lost wages, although she reportedly is unemployed.

Her attorney, Allen K. Young, has tried to justify his client’s actions with the argument that the Plaintiff was walking in an area she had never been before, and at a time when it was “pitch black” outside. As if this somehow diminishes her own negligence. Young argues that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths. This failure-to-warn claim has been flatly disputed by Google, which has said every software version for mobile devices has had that disclaimer since Google Maps was launched in 2008.

The crux of the Plaintiff’s lawsuit appears to be that the woman crossed the road believing there to be a sidewalk on the other side. According to her lawyer, on the other side of the road was a “totally snowpacked” walkway that was of no use to pedestrians. Irrespective of the existence and condition of the walkway on the other side of the road, the woman, according to her own lawyer, didn’t even make it to the median! She wasn’t half-way across the street before she walked directly into the path of an oncoming vehicle.

Although Young has said that there is “enough fault to go around,” which presumably means he recognizes his client is at least partially responsible for her injuries, the absurdity of some liability arguments, and extent some will go to shift blame, continues to surprise.

Lawn Care Can Be Dangerous

At least it was for one Virgina man, Robert Mavity (“Mavity”), who was injured when his riding lawn mower overturned and landed on top of him while he was mowing his lawn on an incline. Mavity v. MTD Products, Inc., No. 1:09 CV 00027, 2010 WL 2169633 (W.D. Va. Jun. 1, 2010). As a result of the accident, Mavity claimed limited mobility due to weakness and neurological problems. Therefore, Mavity filed an action against the manufacturer, MTD Products, Inc. (“MTD”), asserting the that lawn mower was defectively designed, MTD failed to warn of the mower’s dangerous condition, and that MTD breached the implied warranty of merchantability and fitness.

MTD moved for summary judgment on the grounds that there was no evidence that the mower was defective, Mavity unforeseeably misused the product, the hazard was open and obvious, and there was no failure to warn that made the product unreasonably dangerous.

The District Court denied MTD’s motion, first finding that whether the product was defective and whether MTD failed to warn of this dangerous condition were jury issues because Mavity’s expert witness’ opinion — that the mower should have had control level dampers and that these dampers were commonly on mowers — was sufficient to show an unreasonably dangerous condition. The Court also found Mavity’s alleged misuse was a jury question because his expert opined that none of the changes he made to the mower had any effect on the accident. Additionally, the Court found that the question is not whether the defect was open and obvious, but whether the hazard was open and obvious, and Mavity was not aware of the characteristics of the mower that made it more hazardous to accelerate up a slope.

Rulings against MTD kept on coming. Judge Jones granted Mavity’s motion to prevent MTD from offering evidence of the alleged intervening negligence of the doctors that treated Mavity after the accident. The Court reasoned that “the initial medical treatment of Mavity was a reasonably foreseeable result of the initial accident [and any] third-party negligence is thus irrelevant to Mavity’s claim against MTD and must be excluded from the jury.” The Court also rejected MTD’s motion to exclude approximately 500 documents listed as “sources” by Mavity’s expert in evaluating whether the mower was defectively designed. While the Court found that these documents were of limited value, it provided that the parties could challenge trial exhibits at a later time.

Not all was lost for MTD, Judge Jones did rule in its favor on one motion. The Court agreed with MTD and barred Mavity’s expert from offering his future medical cost projections, including a preliminary life care plan, in the absence of proper qualifications of his expert to provide this type of opinion.

With seemingly credible expert testimony on design defect and failure to warn, Mavity was able to get past MTD’s motion for summary judgment and have a jury of his peers decide his case. This case is instructive to defendants that seek summary judgment in the face of expert evidence to the contrary.

Friday Links

After last week’s comic book case law, here’s some Star Wars jurisprudence:

  • “Darth Vader is a huge, malevolent figure dressed entirely in flowing black robes, including a black cape which reaches to the floor. His face is masked by a grotesque breath screen with sharp angles and menacing protrusions. He wears a black helmet of flared design and is armed both with a light saber and his command of The Force, a cosmic power tapped by the Jedi Knights, a vanishing breed of crusaders for good from whose ranks Darth Vader has defected. Darth Vader has significant confrontations in the movie with his former teacher, Ben (Obi-Wan) Kenobi, who is now the Jedi Knight mentor of the young and heroic Luke Skywalker, and with Luke himself; the first battle is fought with light sabers and the second with spaceships.” Ideal Toy Corp. v. Kenner Prods. Div. of General Mills Fun Group, Inc., 443 F.Supp. 291, 297-98 (D.C.N.Y. 1977) (quotations and citations omitted).

  • “Citizens’ political speech would be unacceptably regulated if they had to fear that their efforts in support of a political candidate, even for judicial office, would remove that candidate from his or her official duties if elected. The portrayal of some candidates as ‘good’ and others as ‘bad,’ even in the graphic, pointed analogy of Luke Skywalker versus Darth Vader, is merely the rough and tumble of the democratic process. Regrettably the rough and tumble includes judicial elections.” Rogers v. Bradley, 909 S.W.2d 872, 882 (Tex. 1995). (Enoch, Justice, responding to declaration of recusal) (citations omitted).
  • “You can’t have a mock Star Wars without a mock Luke Skywalker, Han Solo and Princess Leia, which in turn means a mock Mark Hamill, Harrison Ford and Carrie Fisher. You can’t have a mock Batman commercial without a mock Batman, which means someone emulating the mannerisms of Adam West or Michael Keaton.” White v. Samsung Electronics Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc).
  • “One example is the nurturing of the gifted Luke Skywalker by Obi-Wan (‘Ben’) Kenobi in Star Wars, of which the Court takes judicial notice.” Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 155 F.Supp.2d 1, 41 and n.71 (S.D.N.Y. 2001) (noting also that”Star Wars is one of the most well-known and widely viewed science fiction films.”).

The Ultimate Disguise Might Win a Halloween Costume Contest, But It Won’t Win Points With a Judge

In our practice, we have definitely encountered more than one deponent who, upon learning that his or her deposition was going to be recorded by videotape, was less than thrilled by the prospect. Fortunately for us, we have never seen someone like Joseph P. Bertand, a plaintiff who went to extraordinary lengths to avoid giving a deposition in his lawsuit. See Bertrand v. Yellow Transp., Inc., et al., No.: 3:08-01123, 2010 WL 2169499 (M.D. Tenn. May 28, 2010), . While Bertrand is an employment law case, we found his antics so amusing that we had to share.

Mr. Bertrand, acting pro se (which will be no surprise to anyone after reading the order issued by the District Court in this case), filed a litany of claims against the defendants arising from what he contended was his retaliatory termination from his employment with Yellow Transportation. He complained of racial discrimination, sex-based discrimination, national origin discrimination, violations of the Family and Medical Leave Act, defamation and sexual harassment. I feel certain that at the very outset of this lawsuit, there was little doubt that anything about his case would go smoothly. After Mr. Bertrand repeatedly tried to unilaterally notice depositions rather than consulting with opposing counsel as a courtesy, the Court issued an order requiring that the parties cooperate with each other in scheduling convenient dates for depositions. Pursuant to the order, and after consultation, Mr. Bertrand agreed to be deposed on October 6, 2009. Several days after receiving his deposition notice, however, Mr. Bertrand realized that it provided for the videotaping of his deposition, prompting him to notify defendants of his objection.

Mr. Bertrand was not satisfied with defendants’ explanation that they were allowed to take his deposition by videotape, and he filed a motion for a protective order against the videotaping, complete with 67 pages of documents. Among Mr. Bertrand’s objections were references to elusive “sealed agreements” that he had with defendants regarding the recording of depositions, suspicions that the defendants would post the video on the world-wide web for all to see, or even that defendants could steal his identity once they had his image. Despite multiple attempts to contact Mr. Bertrand without success regarding his motion and no showing of a reason why the deposition could not be videotaped, the Court ordered that his deposition proceed.

On October 6th, Mr. Bertrand dutifully appeared as scheduled, albeit wearing all black and several layers of clothing, with the outermost garment appearing to be a large nylon athletic top with a hood that he donned on his head. Mr. Bertrand also wore a large black, bushy wig covering his entire forehead down to his black sunglasses, a fake bushy mustache and a beard. In all, Mr. Bertrand’s face was completely hidden, with his disguise even impeding his ability to speak as he had to keep moving his false mustache out of his teeth. The only victory after 40 minutes of negotiations was to get Mr. Bertrand to remove his sunglasses. The deposition was suspended and later followed by a Motion to Dismiss filed by the defendants as a discovery sanction or, alternatively, for a Motion to Compel Mr. Bertrand’s deposition.

Mr. Bertrand’s response (no surprise here) told a very different story. He noted that the videotaped deposition might have been a pornography filming session masquerading as a court ordered deposition! He even claimed that the defendants’ attorney wanted to sexually harass him by begging Mr. Bertrand to remove some of his clothing and hair, which Mr. Bertrand claimed to take as unwanted sexual requests. Among his myriad of other excuses were complaints about the age and quality of the video equipment and that the lighting was extremely bright and caused heat-induced headaches.

While the Court did not dismiss the action at that time, it entered an order compelling Mr. Bertrand to appear for a videotaped deposition in the judge’s chambers on a mutually agreeable date within 30 days of the order. The next 30 days passed, however, without any contact with the Court to schedule the deposition in chambers, whereupon the defendants again filed a Motion to Dismiss. The Court learned that during that 30-day period, Mr. Bertrand filed five motions calculated to delay or thwart his deposition, including a motion to allow him to face away from the video camera and “blinding” lights to avoid the high heat, thermal radiation, electromagnetic radiation, and black body radiation and to protect his eyes from at least temporary retinal burn, welder’s flash and snow blindness. Another motion sought to prevent the defendants from setting the video to music or to filming in color. Further objections were based on health reasons, including high blood pressure and a non-cancerous growth on Mr. Bertrand’s eye. Naturally, he failed to explain how those conditions would impacted by a videotaped deposition.

Mr. Bertrand’s actions finally led to the dismissal of his lawsuit on May 28, 2010. The reasoning of the Court is instructive to practitioners encountering difficult litigants. The Court reasoned that the plaintiff had disobeyed multiple discovery orders and had abused the judicial process by filing multiple frivolous motions. The frivolous motions were held to be akin to abuse of the judicial process from the filing of frivolous lawsuits. Each of Mr. Bertrand’s filings had little to do with the merits of the case, but instead related to tangential issues.

While we are certain that the defendants and their counsel are now breathing a long sigh of relief, we would wager that they may not have heard the last of Mr. Bertrand. He certainly does not strike us as a quitter!

We often fondly reflect back on our own tales of strange encounters and unusual antics by opposing parties and do not tire of telling those war stories (Like, for instance, our deposition during which a widow proceeded to carry on a conversation with her husband’s ashes, which she brought with her in a duffel bag, and the time when a deponent proceeded to “diaper” an urn containing the ashes of a deceased pet monkey. Yes – Those are both true stories.) We are sure that defense counsel in Mr. Bertrand’s case will be telling this story for years to come. We know that we would.