190 Tons of WalMart Deli Meat Recalled Over Potential Listeria Contamination

People of WalMart beware: 190 tons of the mega-store’s deli meat have reportedly been recalled due to potential Listeria contamination. The affected product comes from Buffalo, New York-based Zemco Industries. According to the USDA press release, the problem was discovered as the result of a retail sample collected by the State of Georgia that confirmed the meat was positive for Listeria monocytogenes.

There have not yet been any reported illnesses associated with the sale of the Zemco deli meat, but according to the USDA, eating food contaminated with Listeria can cause listeriosis, a potentially fatal disease. It also may cause high fever, severe headache, neck stiffness and nausea. Those most susceptible to listeriosis are infants, the elderly, and others with weakened immune systems. Healthy people rarely contract the disease.

As you can see from our previous post here, this is only the latest in a string of food recalls that have taken place this summer. Perhaps the fall will bring better news.

Third Circuit Affirms Summary Judgment in Favor of Ford as a result of Plaintiff’s Lack of Expert Testimony

Have you ever thought that traveling in a vehicle going above 65 miles per hour could cause cancer? One Pennsylvania resident, Ted McCracken (“McCracken”), thought so and asked the Eastern District of Pennsylvania to award him damages as a result of such alleged injury. Pro se Plaintiff McCracken filed an action against Ford Motor Company asserting that he contracted thyroid cancer as a result of the insufficient protection Ford windshields provided from ambient radiation in the air that increases to dangerous levels inside a cabin when a vehicle travels at speeds in excess of 65 miles an hour. McCracken v. Ford Motor Co., No. 09-3995, 2010 WL 3010304 (3d Cir. Aug. 3, 2010) [PDF]. McCracken asserted eight causes of action, including strict products liability and defective design.

Ford filed a motion to dismiss on a number of grounds and the District Court of Pennsylvania dismissed all McCracken’s claims, except for strict products liability and defective design, and entered a scheduling order. Pursuant to this scheduling order, McCracken’s expert report was due on April 6, 2009. After this deadline had passed, McCracken filed a motion for an extension of time to retain an expert and a motion for the appointment of an expert under Fed. R. Evid. 706. The District Court denied his motions and Ford moved for summary judgment based upon McCracken’s lack of expert testimony. The District Court granted summary judgment in favor of Ford and McCracken appealed.

On appeal, McCracken asserted that he submitted sufficient evidence to survive summary judgment even without the testimony of an expert. This evidence included data regarding environmental radiation, a list of books and articles on radiation, the deposition testimony of a representative of the Pennsylvania Department of Environmental Protection, and affidavits from him and his mother stating that they observed increased readings on a Geiger meter when the vehicle accelerated. The Third Circuit found that this “evidence” was not enough to withstand summary judgment on the cause of McCracken’s cancer or the defective design of Ford’s windshields.

McCracken’s second argument on appeal is that the District Court erred in not appointing him an expert. The Third Circuit agreed with the District Court that “the purpose of Rule 706 is not to provide ‘litigation assistance’ to a party unable to retain an expert on its own.” The Third Circuit found no error by the District Court. McCracken asserted four more arguments on appeal, all not worth discussing here, which were all rejected by the Third Circuit.

This case is another example of a Plaintiff asking our Courts to buy into his or her theory of injury based on “because I said so.” The Third Circuit correctly found that Ford was entitled to summary judgement where plaintiff either could not find an expert to support his theory or he disregarded the court’s instructions by failing to find such an expert within their deadlines.

As a side note, this is McCracken’s thirteenth lawsuit asserting this general ambient radiation theory. He has sued numerous defendants including other automobile manufacturers, manufacturers of other types of vehicles that can travel in excess of 65 miles per hour, nuclear power plants, and energy companies. See McCracken v. R.E. Ginna Nuclear Power Plan, LLC, No. 08-cv-6217L, 2010 WL 1404115, at *4 (W.D.N.Y. Mar. 31, 2010).

Friday Links

We here at Abnormal Use are not family lawyers, but we like to think that if we were, we would zealously conduct ourselves in the courtroom in the manner that Superman does above, on the cover of Superman’s Pal Jimmy Olsen #128, published way back in July of 1970. Note that the Man of Steel flies through the open courthouse window (apparently bypassing courthouse security) in order to object to archaeologist Hal Rand’s attempt to adopt Jimmy. (Since it’s obviously an adult adoption, perhaps Rand just wanted someone who would be able to inherit from him if he passed away.). Someone should probably tell Superman that banging one’s fist on the judge’s bench is probably ineffective, though. Jimmy apparently prefers great wealth and a fine home to Superman’s offer of a cold and lonely existence at the Fortress of Solitude. Or perhaps the social worker gave up on trying to make an in-home visit to Superman’s secret hideaway. In addition, apparently Superman had not developed his ability to reverse time in 1970. Why would a superhero of Superman’s caliber come flying in as the judge makes his ruling? Wouldn’t it be easier to arrive about ten minutes earlier and push Hal Rand in a great crevasse?

We love history and true crime. The Media LawProf Blog has published the abstract of Edward Larson recent piece in the American Journal of Legal History, “An American Tragedy: Retelling the Leopold-Loeb Story in Popular Culture.” The Leopold and Loeb crimes were the basis – for the most part – of Alfred Hitchcock’s stellar 1948 flick, Rope (which was apparently itself based upon a 1929 play by Patrick Hamilton).

Quote of the Week: “That sum, demanded by a Las Vegas man in a suit against three Utah attorneys, is far in excess of all the money in the world, so there may be collectibility problems,” Walter Olson, commenting here at Overlawyered, in response to news that a Plaintiff in a recent lawsuit has demanded $38 quadrillion. (The dispute apparently also involved a $918 billion lien.). Well, at least the amount in controversy is clear for removal purposes, eh?

Lawyerist reports on an interesting dust-up between an attorney blogger and LegalZoom.

Robin Wheeler at the South Carolina Access to Justice Weblog has a post entitled “Why I Do Pro Bono . . .

The Litigation and Trial Blog has a nice post about the City of Philadelphia’s current attempts to apply its business privilege license requirements to local blogs. For the record, this blog is not, nor has it ever been, based out of Philadelphia.

Pennsylvania ATV Case Highlights the Difference Between Misuse and Unintended Use in Products Cases

In Smith v. Yamaha Motor Corporation, U.S.A., — A.2d —, 2010 WL 3239476 (Pa. Super. Ct. Aug. 18, 2010), an appeals court in Pennsylvania considered whether a trial court erred in granting summary judgment to Yamaha on claims of negligence and strict liability, and whether it erred by striking the report of Plaintiffs’ accident reconstruction expert in its entirety.

On September 23, 1999, Jeffrey Smith, an experienced ATV rider, was attempting to back his Yamaha ATV, more specifically a 1987 Yamaha Big Bear 350, down a hill when his foot slipped and struck the right-rear fender of the ATV. The fender collapsed, and his right leg became trapped between the frame and the wheel. The ATV then rolled back over Mr. Smith, causing him to suffer severe injuries that left him disabled and disfigured. According to the website, this ATV was Yamaha’s first 4×4 ATV:

Mr. Smith and his wife, Susan, sued Yamaha under theories of strict liability, negligence, and breach of warranty, and claimed that the rear fender and instrument panel were defective. Yamaha answered, and asserted that Mr. Smith was contributorily negligent by trying to back the ATV down the hill, and by consuming alcohol (Mr. Smith’s BAC was 75% below the legal limit) and taking drugs (he was ingesting prescription OxyContin for a degenerative back condition).
Yamaha’s motion for summary judgment as to Plaintiffs’ strict liability claims was granted on the grounds that Plaintiff was misusing the ATV at the time of the accident because the ATV manual, which Plaintiff acknowledged receiving, warned against consuming drugs or alcohol in connection with using the ATV, and also counseled against letting the ATV roll backwards on a hill. By doing all of these things, Yamaha argued, Mr. Smith was “operating the vehicle in an unintended manner” (emphasis added). Yamaha’s motion for summary judgment as to Plaintiffs’ claims for negligence was also granted, as was its motion to strike the expert report of Plaintiffs’ accident reconstruction expert, because it raised a new theory of recovery after the statute of limitations had expired.
The appellate court reversed the trial court’s striking of the expert’s report in its entirety, holding that even though part of the report did raise a new recovery theory following the statute of limitation’s expiration, the remainder of the report did not and, therefore, the offending portion should merely have been redacted. The expert, therefore, should have been allowed to propound his theories about the defectiveness of the design of the fender and the availability of alternative designs that would have prevented Plaintiff’s injuries.
With this part of the expert’s report back in evidence, Plaintiffs’ claims under the negligence theory were once again viable. The expert was allowed to opine that Yamaha’s design did not meet the state of the art at the time of design and manufacture of ATVs. The appellate court, therefore, reversed the trial court’s decision to grant Yamaha’s summary judgment motion on Plaintiffs’ negligence claims.
The most instructive portion of this decision, however, was the appellate court’s decision to reverse the granting of Yamaha’s motion for summary judgment on Plaintiffs’ strict liability claims. In doing so, the court explained that “the trial court conflated the doctrine of unintended use with the concept of misuse” (emphasis added). According to the appellate court, Plaintiff was indeed operating the ATV for its intended use–off-road riding. What he may have been doing, however, was misusing the vehicle by operating it in a manner not intended by the manufacturer–backwards and potentially under the influence of drugs and alcohol. Finally:
It is well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a design defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.

Because the evidence of Plaintiff’s riding on the date of the accident went to the issue of misuse, rather than unintended use, and because there was evidence that a design defect may have caused or at least contributed to the accident, the trial court’s grant of summary judgment was reversed.

No Federal Jurisdiction Over Spoiled Food Case

Wouldn’t it be great to be incarcerated in the state prison system? I imagine that it would lend a great deal of structure to my day, and I could file my lawsuits for free. Perhaps some court would write about me in an opinion. Instead of identifying me by name, the court would simply start the opinion with “Plaintiff is incarcerated at Ironwood State Prison . . . .” Alas, Walter Brown, Jr. was so lucky, as shown in Brown v. Summerset, No. C 09-04764, 2010 WL 3154538 (N.D. Cal. Aug. 9, 2010).

Brown filed a products action based on the peanut products recall in 2009. Apparently, Summerset, the menu coordinator for the state prison system, also tried to punish Brown by providing him with “spoiled beef and textured vegetable protein tacos.” (This and other tidbits are available in the Complaint, which is Document 1 in the case easily found on PACER.) Although the complaint describes the injuries suffered, I’ll spare you most of the details, only to say that Plaintiff complained of an intestinal ailment that he described as “watery.”

Brown must have spent much of his time in prison studying law, as he stated claims for negligence, strict liability, warranty, and even intentional infliction of emotional distress. Brown did an excellent job pleading facts to get past Iqbal and Twombly. He alleged that the “Plaintiffs believed they would succumb to their sickness” and that the Peanut Corporation of America knowingly distributed tainted food. He also alleged damages of at least $35 million, ensuring that he would meet the amount in controversy requirement.

But woe to Brown, that in all of his legal study, the seminal case of Strawbridge v. Curtiss eluded him, and his suit was doomed from the start when he sued Ms. Summerset, a fellow California citizen, thereby destroying complete diversity among the parties. Judge Armstrong went the extra mile, even addressing whether federal question jurisdiction was available. Indeed it was not. Brown’s claim, being dismissed, may be re-filed in California state court, where it will be much harder for me to find and read his complaint on the internet. Good luck, Mr. Brown. May your next meal of beef and textured vegetable protein tacos be more appetizing.

Class Action Settlement Approved in Lawnmower Fraud Case

I’ll never forget that first–and last–time I purchased a store-brand jar of salsa, thinking there was no way it was any different that the $0.30-higher-priced name-brand jar. Then with my first dip, I bit into a twig. From that point forward, I was ready to pay that extra $0.30 because I then understood that was simply the cost of the name-brand company’s employing a twig picker. I became one of those perhaps gullible consumers who believes that when you pay more for a product, you’re getting a better product. Well, such is apparently not always the case.

Last week, a federal judge in Wisconsin gave final approval to a $65 million settlement in multidistrict litigation brought by consumers who accused 10 companies of conspiring to overstate the horsepower of lawn mower engines. According to an article in The Washington Post, the case began in 2003 when an employee of one of the manufacturers walked in to a Minnesota law firm, claiming that he was privy to some interesting information. Specifically, the manufacturers were selling lawnmowers with advertised horsepower of 4.5, 5, 5.5, and 6.75, but all had the exact same engine. Suit was thereafter filed in May 2009.

According to the complaint, these companies took mowers with identical engines, put different labels on them, and sold them at significantly different prices. Perhaps even more alarming, the suit alleges that several of the companies had created a “Power Labeling Task Force,” which was used to plan and organize the conspiracy. This group allegedly met at various locations and even kept minutes that were distributed when the task force adjourned.

To date, about 340,000 claims have been made. Under the terms of the settlement, class members will receive $35 for every eligible walk-behind mower they own, and $75 for every ride-on mower. The lawnmower companies have also agreed to extend warranties by one year and to change the way they test and report horsepower.

And so it seems that my cost-more, get-more theory may be misguided.

Bounce Houses — Possible Toxic Entertainment for Children

What you see captured above is Main Street Friday in our own downtown Greenville, South Carolina. You will notice what some people call a “Bounce House” or “Bouncy Castle” featured in the photo. While all Greenville parents are happy to have a form of entertainment for their children as they enjoy the show, what they do not know is that they may be allowing their children to jump in a toxic structure.

Last week, The New York Times reported that California Attorney General Jerry Brown filed a lawsuit against entities that manufacture, distribute, or supply bounce houses used at events such as Main Street Friday or children’s birthday parties. He claims that the houses contain more than the allowable limit of lead and pose health risks to children. The Center for Environmental Health began an investigation into the vinyl used in the construction of bounce houses — the component that gives them the bounce. The results of their investigation revealed lead levels in the vinyl varying from 5,000 parts per million to 29,000 parts per million. The federal limit for lead levels is 90 to 300 parts per million, significantly lower than the vinyl tested in these houses.

Attorney General Brown reported that his intention for this lawsuit is to cause manufacturers to stop using lead-containing vinyl and/or ensure that all bounce houses have adequate warnings regarding possible lead exposure. While that actual health effects on children by jumping in a bounce house for several hours is unknown, Dr. Megan Schwarzman, a family physician at Berkeley Center for Green Chemistry, told the Times that “there was no safe level of lead exposure for children.” It will be interesting to see how this litigation progresses and whether similar lawsuits will arise around the country. While parents will be glad to be warned about the possible toxicity of bounce houses, I am sure that children will not be pleased!

Friday Links

We don’t usually cite to the Word Spy here on Friday Links, but how could we not bring your attention to the phrase “iPod Oblivion,” defined as “Obliviousness to one’s surroundings caused by listening to an iPod or similar device.”

The Rainmaker Blog asks, “Should Attorneys Tweet?” We here, we merry few, say yes.

Amanda Ray at the North Carolina Appellate Blog has this post, entitled “COA: Expert Witness Costs May Only Be Awarded If the Expert Was Under Subpoena (But Language in Scheduling Order Could Waive This Requirement.” Long title, but it fits. She’s describing the North Carolina Court of Appeals’ new opinion in Jarrell v. Charlotte-Mecklenburg Hospital Authority.

Earlier this month, Morihiko Nakahara, the Music Director of the South Carolina Philharmonic, spoke to the South Carolina Women Lawyers Association. The Association’s blog, The Briefcase, has a nice write-up of the event here.

The ContractsProf Blog has another post about, well, Paris Hilton. Uh, what happened to teaching Wood v. Lucy, Lady Duff Gordon? Well, I guess it’s okay. Both cases involve pretentious socialites, so there you go.

FDA Issues Warning on Frozen Mice

Abnormal Use does not want to be accused of failure to warn, so here’s your warning: you might not want to read this post right after lunch. The FDA has issued a warning on the use of frozen mice sold for reptile food. (You may recall that we mentioned this very briefly in a previous Friday Links post, but you must have thought we were kidding.). Now, before you use your mouse to click directly out of Abnormal Use for the day, you might want to keep reading.

The contaminated mice, sold by Biggers and Callaham LLC, doing business as MiceDirect, may be contaminated with salmonella, a nasty little bacteria that can cause some very unpleasant symptoms. The FDA is warning those with compromised immune systems not only to avoid handling the rodents themselves, but also to avoid handling any reptiles who may have already consumed contaminated rodents. Some people have already reported symptoms.

So, if anyone in your family likes to cuddle with snakes, you might want to stop that practice. We think that might be a good idea generally, but even more so now.

Lou Gehrig May Not Have Had Lou Gehrig’s Disease, New Report Suggests


Big news: Lou Gehrig may not have actually suffered from Lou Gehrig’s disease, known less commonly as amyotrophic lateral sclerosis. That new speculation is reported upon in this recent report by The New York Times, which notes that soon to be published medical literature finds that the conditions of those previously thought to have suffered from the disease “might have been catalyzed by injuries only now becoming understood: concussions and other brain trauma.”

What does this mean? The article goes on to say:

The finding could prompt a redirection in the study of motor degeneration in athletes and military veterans being given diagnoses of A.L.S. at rates considerably higher than normal, said several experts in A.L.S. who had seen early versions of the paper. Patients with significant histories of brain trauma could be considered for different types of treatment in the future, perhaps leading toward new pathways for a cure.

More significantly, [according to two doctors interviewed in the piece], the finding solidifies a long-suspected connection between A.L.S.-like motor disease and head trauma experienced in collision sports and combat.

According to statistics cited in the article, 30,000 Americans have been diagnosed with Lou Gehrig’s disease. The study, authored by Boston University Associate Professor of Neurology and Pathology Ann McKee and several co-authors, will appear in the September issue of the Journal of Neuropathology and Experimental Neurology.