We here at Abnormal Use are very pleased to announce that our humble blog was selected yesterday for inclusion in the ABA Journal‘s Blawg 100, the “annual list of the best of the blawgosphere.” It was less than a year ago, in January, when we began this fateful enterprise, and we’ve posted each business day since that time on the latest products liability cases and news. Now, after nearly 250 posts, almost a dozen interviews with law professors and practitioners, and a sizable quantity of Friday Links, we’re not quite veterans, but we believe we’re starting to get the hang of the slings and arrows of this blogging thing.

When we first heard the news we weren’t quite certain how to react. We tried to play it cool, but we were never successful at creating such a facade. Cynical as we purport to be, we’re actually rank sentimentalists at heart, and we’re quite honored to be included among the other seven torts blogs, those being the Boston Personal Injury Lawyer Blog, the Drug and Device Law Blog, the FDA Law Blog, Jackson on Consumer Class Actions and Mass Torts, Marler Blog, New York Personal Injury Law Blog, and The Pop Tort. We’re still a little shocked.

This project would certainly not have been possible without the support of our firm. Kudos also go to our two principal authors Phil Reeves and Stephanie Flynn, as well as our five associate contributors: Kevin Couch, Jim Dedman, Mary Giorgi, Laura Simons, and Frances Zacher. We also thank former contributor Dan Eller for his work on the project during 2010.

Further, we would not be what we are today without the support of other blogs, including the Drug and Device Law blog as well as the Overlawyered and Point of Law blogs, all of which served as an inspiration to us as we prepared to enter the blogosphere just over a year ago.

Finally, we thank everyone who nominated us for inclusion in the list. We’ve got just one more favor to ask. After announcing the final 100 blawgs, the ABA Journal is now asking its readers to vote for the best of the final 100 in 12 substantive categories. Our blog is included in the Torts category, and we ask that you register at the ABA Journal‘s site and cast a vote for us here.

And if that’s not enough, we’ve got some big things in store for you in the coming weeks. Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).

Thank you again, dear readers, for your visits to our site and support. We very much appreciate it, and we are looking forward to bringing you another year of commentary in 2011.

Fellow blog The Hot Dish had an interesting post recently about a diner suing a restaurant owned by the Hillstone Restaurant Group because he was not properly instructed on how to eat an artichoke. Mr. Carvajal, the diner in question, ate the actual leaves of the artichoke, leading him to experience severe abdominal pain due to the leaves being lodged in his small bowel.

The Hot Dish asks the right question: “To what extent should restaurants be liable for the foods they serve?” For instance, should diners be warned not to eat the bones of barbecue ribs?

Other blogs have also provided commentary on this case; a post in the Miami New Times points out that Mr. Carvajal is a doctor originally from Cuba, and suggests that perhaps, he should have known better. Word of Mouth also posted on the suit, commenting that it raises questions about the balance between “helpfulness and over-familiarity” by servers. But perhaps the best commentary on the case from a legal standpoint comes from a post by On Point, which analyzes the negligence case Mr. Carvajal will be attempting to make against the restaurant as follows:

Florida, like other states, uses a “reasonable expectation” test in unfit food cases. A preparer of food “has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,” the Florida Court of Appeals said in Zabner v. Howard Johnson’s, 201 So.2d 824 (1967).

Carvajal, though, can’t recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

***

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, “How do I eat this?”

While I agree with this analysis as a whole from a public policy standpoint, I’m not sure it isn’t what Mr. Carvajal ate that wasn’t the problem–he ate the entire leaf of the vegetable, instead of just the meat inside it. For my part, that’s a what and not a how as On Point describes it. But to burden restaurants and servers with explaining to each diner how to eat his food–from shrimp to ribs to bone-in steak–would be to expand the concept of duty in a negligence action far beyond the scope that the law–and common sense–ever intended.

• We hope and trust that you had a fine Thanksgiving yesterday. The comic book cover depicted above is that of Famous Funnies #16 – published way, way back in November of 1935 and speculated to be the very first Thanksgiving-themed comic book cover.
• Today is also Black Friday, which means that if you venture out into the world today in search of would-be Christmas gifts, you do so at your own peril. Our suggestion: Hide from the world today in a tryptophantastic coma and watch college football.
• The Texas State Bar’s Say What?! blog posts humorous hearing and deposition excerpts that were initially compiled by the late U.S. District Judge Jerry Buchmeyer in his bar journal column. Music fans that we are, we couldn’t resist sharing this funny excerpt originally published in 1995 and republished on the blog last week:
  

  A. You’ve got to figure I’m a pretty conservative lady. This is the first concert I have ever been to.

  Q. Of any kind?

  A. Well, I take that back. I went to Jerry Lee Lewis when I was 16 years old.

  Q. There was no shooting at that concert, was there?

  A. No. A whole lot of shaking going on, but no shooting.

  Of course, we had to explain to our new associates who Jerry Lee Lewis is. Oh, well.

• Speaking of music, David Post of The Volokh Conspiracy opines on the copyright implications of the new album by Girl Talk, an act known for unsanctioned mash-ups of other group’s songs. Says Post: “Unfortunately,this is just the sort of creative activity that copyright law, in its current incarnation, makes almost impossible for anyone who (unlike Girl Talk) is unwilling to face potentially catastrophic liability risks. It would take you hundreds of hours of work and hundreds of thousands of dollars to clear the rights to this album even if you wanted to — a pretty sorry state for a law that is supposed to be incentivizing, not prohibiting, creative expression to be in.” Post’s co-author, Stewart Baker, also weighs in on this Girl Talk/copyright issue here.
• Yesterday, by the way, was a huge traffic day for our site. In this post, Walter Olson of Overlawyered linked our our “Thanksgiving in 1810, 1910, and 2010,” which was then followed by this post from the well known Instapundit blog linking the same piece. Since then, we’ve had record levels of website traffic from all sorts of different sources.
• Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).

We here at Abnormal Use wish you and your family a happy Thanksgiving. We trust that it will be full of touchdowns and tryptophan, just as every Turkey Day should be.

We do hope you had a chance to read our post earlier this week about Thanksgiving in America over the course of the past two centuries. We found a century old article in which a 1910 lawyer/writer looked back to 1810 and forward to 2010, and we couldn’t resist responding to it.

Above, you’ll find the cover of Comic Cavalcade # 18, published way back in 1946 and featuring almost ancient versions of The Flash, Wonder Woman, and the Green Lantern.

(Thanks to this post at Golden Age of Comics for alerting us the cover above.).

The Wall Street Journal here provides a history of the issues that have resulted from the installation of Chinese-drywall in American homes and the resulting litigation associated with those problems. This article also provides a brief summary of the Bennett decision and poses the question whether it “could set a template for other judges to use to adjudicate drywall cases across the country.” Homebuilders hope so.

Mmmmmm. Now the cigarette is even closer to my lungs. And I get the added benefit of focusing on lung cancer without worrying about any pesky oral cancer or hairy tongue. Yes, hairy tongue is a real disease, and tobacco use is a contributory factor. (Strangely enough, coffee drinking is also a contributing factor, which is unfortunate for the universe of associates who depend on both coffee and cigarettes to stay awake.) As noted in multiple media, including the New York Times and much of the blogosphere, the FDA is proposing new illustrative warning labels to encourage people to quit smoking. Yum. To see some of the other proposed labels, click here. Here are several different opinions on the impact of this move.

Defense Litigation-oriented opinion: I’ll note that this move is a generation away from paying off for Big Tobacco. It’s hard to imagine that a smoker will succeed in ignoring or not understanding these types of warnings, when the warning is designed to take up 50% of the package area surface. So, certainly, these warnings are favorable to future litigation outcomes for Big Tobacco, which will reduce their anticipated exposure to large jury verdicts. In 20 years, cigarette manufacturers may be more profitable than ever.

Conspiracy-theorist opinion: This is a much easier way to pay lip service to the idea that we want to reduce the overall costs of smoking to the public, than say, banning cigarettes. The federal government doesn’t want to ban cigarettes because according to this website that I know nothing about, the federal government took in $8.5 billion in cigarette taxes in 2009. Way to go progressive tax system! Therefore, these new labels are good for both the government and manufacturers.

College student opinion: Moreover, this is sure to be an effective tool to decrease the existing pool of smokers. Does anyone else think that your typical college student will have a large poster of the above graphic hanging in his room while he smokes, while, at the same time, thinking how smart he is because he appreciates the irony? Meanwhile, because the cost of college will continue to skyrocket, the rest of us will appreciate the irony of the graduate struggling to pay off his student loan debt (because college graduates make all the money) while he looks for money in his budget to buy cigarettes.

Realistic opinion: If you want people to quit smoking, tell them about hairy tongue. Surely, the prospect of hairy tongue is scarier than emphysema.

Defense-litigation perspective resumed: The universe of manufacturing defects in this realm is pretty small. Failure to warn claims will soon be extinct, which will leave design defect claims as the viable strict liability alternative. Surely this labeling program will establish significant comparative negligence. Fraud and civil conspiracy claims will begin to die out as the early generations of smokers die out. What kind of new legal theories will be invented to establish liability over the next generation? This seems like a pretty good time to start a cigarette manufacturing company.

Every Thanksgiving, American readers of newspapers and magazines are treated to similar nostalgic pieces about the origins of Thanksgiving and the uniqueness of the holiday.

It was no exception in 1910, one hundred years ago, in the pages of St. Nicholas: An Illustrated Magazine for Young Folks, a then popular family magazine. In that publication’s November 1910 issue, writer Clifford Howard authored a piece called “Thanksgiving in 1810,” in which he looked back a century to see how far the nation had progressed since that time. What a fun and intriguing article to stumble across exactly one hundred years later (particularly with the stellar illustrations by C.T. Hill, some of which we’ve embedded here in click to enlarge format).

“The world has changed more in the last 100 years than in any 1000 years that have gone before,” Howard wrote, not knowing how much that change would accelerate in the coming years. But surely, in writing such a piece, Howard wondered whether anyone a century from his time would look back to 1910 and comment upon similar changes in the culture. Of course he did. In fact, he ended his piece with the question, “[W]hat will it be in 2010? Who can tell?”

So, we here at Abnormal Use, denizens of 2010, will take it upon ourselves this Thanksgiving week to revisit Howard’s long forgotten article from that long forgotten magazine. (Considering the nature of his task, we think he would appreciate our responding via the Internet, a medium that he could not have imagined in his wildest dreams way back in 1910).

Most of Howard’s commentary concerned the huge advances in technology that occurred in the century preceding the publication of his piece. Thus, he began with the following premise:

A hundred years back may seem a long while ago, but when you remember that there are men living to-day whose fathers saw General Washington, a century does not seem so long a time after all. And up to the time of Washington a hundred years did not mean very much to the human race. The world moved very slowly. When Washington died, in 1799, people were using the same sort of appliances and doing the same things in the same way that they did in 1699 and even 1599. In former times, if a man could have returned to earth at the end of a hundred years, he would not have been very much surprised at any of the changes that had taken place during this absence. But if Washington or Franklin, or even Thomas Jefferson, who died less than a century ago, were to come back to earth now, he would not know where he was.

Howard notes the obvious, that the citizens of 1810 had no “air ships or automobiles or motor-cycles,” and so of course, travel was not nearly as speedy as it was for those of 1910. But then he ponders how those of 1810 would interpret the technological marvels of the early 20th century:

In fact, not only the humble farmer of that day, but the scientist and philosopher as well, would have found it impossible to believe all the wonderful things that were to take place within the century. If you could have lived then and looked ahead a hundred years and told your friends and neighbors that men would travel by steam and electricity, that they would fly in the air from London to Manchester, or from New York to Philadelphia, that they would talk to one another from Boston to Chicago, they would flash news across the ocean in the twinkling of an eye, that the great wilderness beyond the Mississippi would be populated with millions of people and contain some of the big cities of the world, that men and woman would go across the Atlantic and across the vast continent of America in perfect ease and comfort and in less time than it then took to journey from New York to Washington – if in 1810 you had foretold these marvelous things, your friends and neighbors would have shaken their heads and whispered sadly to one another that you were crazy. If the wonders you related to them were to come to pass during the next thousand years, they perhaps would have admitted that there might be truth in some of your stories; but to say that they would all come true inside of a hundred years and that some of the very people to whom you were talking would live to see many of these magical inventions, would have been really to much for any sane person to believe.

Fifty years later, Arthur C. Clarke would summarize the same sentiment when he wrote that “[a]ny sufficiently advanced technology is indistinguishable from magic.”

Of particular interest is Howard’s comparison of the communications infrastructure of both time periods. When we, as modern readers, study history, we have an omniscient view based upon the many events pieced together by the historian. We know what was occurring at all relevant times in all relevant places. But the participants of those historical events had no such luxury. News traveled very, very slowly in 1810, at a molasses like pace even by 1910 standards:

As there were no railroads, news traveled only as fast as a horse could run or a ship could sail. There were no wires to carry messages, for there was no telegraph and there was no telephone.

…

If the farmer of 1810 got a newspaper at all, it was a week or a month or perhaps three months old before it reached him.

Imagine what Howard would think of live television or the Internet. Would he be able to comprehend Facebook or Twitter? Or the technology which allows each of us, with everyday devices, to capture a moment on film or video and share it with the world instantly? What would he think of the notion that in this age we are all pamphleteers and publishers?

On a side note, we, as proprietors of a legal blog, can’t help but wonder just how different the practice of law was in 1910 based, in part, on the aforementioned differences in communications technology. It was certainly slower, in that litigators could not easily save and alter legal forms and blast them out instantly via fax or email. Never mind the fact that the information gathering process must have been slow, as well, simply because not everyone had telephones. Documents were locked away in dusty file rooms of courthouses, not available with a quick digital search. But the advantage of that may have been that lawyers weren’t scurrying about all the time in such great haste to perform this task or file that motion. Might the practice have been described as slow but rewarding? We can only surmise based on what we know in hindsight.

Some other fun bits:

• Howard observes that in 1810, the states of Florida, Texas, and California were not yet a part of the nation and were, thus, merely “waste places or foreign lands.” Ouch.
• Howard notes that Thanksgiving, as his generation knew it, was not celebrated officially outside of New England in 1810.
• Most newspapers in 1810 were issued only weekly, and the would be news contained therein was a few days to half a year old.

What will it be in 2110? Who can tell?

So, what became of Howard the writer and the publication to which he submitted this piece?

The St. Nicholas magazine, which began publishing in the 1870’s, folded in the 1940’s. Howard, for his part, didn’t make it to the halfway point of the 20th century, either. He died in 1942, at the age of 73, apparently after spending some time in Hollywood writing movies. According to his brief New York Times obituary (behind that site’s paywall archive), Howard “worked with Cecile B. De Mille and his research was largely used for the film King of Kings.” He was the author of many magazine articles and a number of books (and his work wasn’t always family friendly, either).

Here’s the best nugget we discovered about Howard’s life and education: According to this 1895 mini-biography of Howard published in a poetry journal, he once studied the law! It notes: “Like many others in their gradus ad Parnassum, he devoted some time to the study of law, graduating with the title of L.L.B. from the Columbian University in 1890, only to find that Blackstone and Kent were uncongenial masters and that his literary aspirations would never be content within the narrow bounds of prosaic law.”

Well, at least that’s something that hasn’t changed since 1910.

• Daredevil is the blind superhero whose alter ego is Matt Murdock, a successful New York attorney. You read that right: He is a lawyer by day, costumed superhero by night. (You may remember the awful 2003 film adaptation starring Ben Affleck). But there’s a problem with the cover of Daredevil #230, depicted above and published way back in 1986. Murdock’s desk is way, way too organized to be that of a lawyer – any lawyer – maintaining any type of practice at all. Sure, the phone is off the hook, and there’s a few wads of paper on the floor, but look at how neat the rest of the desk appears to be. It just doesn’t work. (Incidentally, in this particular storyline, Murdock is disbarred after The Kingpin, a nefarious super villain, learns his identity and uses allegations of professional misconduct against Murdock. Are super villains so evil now that they accuse their superhero adversaries of violating their profession’s rules of disciplinary conduct? Yikes!).
• Congratulations to occasional blog contributor, and perhaps more importantly, our boss, Mills Gallivan for receiving the prestigious Robert Hemphill Award from the South Carolina Defense Trial Attorneys Association last weekend at its annual meeting in Pinehurst, North Carolina.
• More good news: Mark Herrmann, one of the founders of the Drug and Device Law blog, is triumphantly returning to the blogosphere. However, he won’t be coming back to his own stomping grounds. Rather, he’ll be covering the in house counsel beat at Above the Law. (The official announcement from ATL itself can be found here.).
• Although we only recently discovered the site, the iPhone J.D. blog – dedicated to lawyers using iPhones – celebrated its second anniversary this week.
• We’re too out of the loop to know anything about alcoholic energy drinks, but according to this piece in the Wall Street Journal, the FDA is about to bring the hammer down on them.
• If you’ve not read this article from last week’s New York Times regarding the rise of litigation finance companies, you should. It’s a burgeoning industry, and it’s something defense lawyers should be aware of. (Hat Tip: Civil Procedure and Federal Courts Blog).
• Finally, don’t forget, if you enjoy our daily commentary here, you can receive posts in your email inbox by by inputting your email address into the “Subscribe Via Email” box in the right hand column on this page. You’ll receive one post a day, business days only, save for special occasions or when circumstances warrant.

Bedbugs are quickly becoming a national epidemic. Indiscriminate in their selection of venue, the bugs are popping up everywhere, from luxury hotel suites in Manhattan to hospital beds in Tennessee and college dorm rooms in Pennsylvania and North Carolina. Not surprisingly, a significant number of lawsuits have followed. The most recent of these is a high-profile suit filed by a Michigan couple against New York’s famed Waldorf-Astoria hotel, which illustrates that the alleged damages in these cases can be extraordinary.

If a picture paints a thousand words, do you still want to eat ground beef? Today’s post serves as a reminder that breaking a tooth while trying to eat the Old 96er does not give rise to a cause of action. Daniel Burns’ case didn’t survive summary judgment, and his appeal to the Appellate Division of the Massachusetts District Court does not begin well: “ Eating a McDonald’s double cheeseburger while driving his truck, the plaintiff, Daniel L. Burns, Jr. (“Burns”), felt a molar break on a hard object, which he did not recover.” Burns v. McDonald’s Corp., No. 10-ADMS-40001, 2010 WL 4226278 (Mass. Ct. App. Oct. 20. 2010). It turns out that Burns should have tried harder to recover the gristle, for without the foreign object he could not be successful as a matter of law.

The court sets up the facts well:

On October 20, 2006, Burns bought a double cheeseburger at a McDonald’s restaurant drive-through window in Raynham. As he drove his pickup truck onto Route 44 while finishing the cheeseburger, Burns had to brake so suddenly because of traffic that he had to restrain with his right hand his 75-pound dog, which had “started to go flying,” and then grab the steering wheel with both hands to keep his truck under control. Indeed, he “needed to push” the cheeseburger into his mouth so he could grab the wheel. While braking, with cars around him swerving, including the car behind him “swerv[ing] out from underneath the truck and into the breakdown lane,” Burns bit onto something and felt pain in the whole right side of his mouth. With his tongue, he felt a round and “hard and bumpy” object about the size of a “small pea.” He spit the contents of his mouth into a napkin. Examining that material later, he found what might have been tooth fragments, but not the offending object, which he never saw or felt, except with his tongue. Burns reported the incident to the restaurant on the day it occurred, and was examined by his dentist at Woodstock dental implants later the same day. Might I suggest to Mr. Burns that, if you were to get in a similar situation again, please, drop the double cheeseburger. Then, reply to this post, and I will wire you the $1.49 to buy a replacement double cheeseburger. If you were to ever get into a car accident with me, and I found out that it was because you were unwilling to relinquish your death grip on your midday artery clog, I would be more than mildly upset. Cramming the sandwich into your gullet is not the decision of a rational actor.

But wait, there’s more: “Almost exactly a month before this incident, on September 19, 2006, a piece of the tooth at issue here simply “had come off” while Burns was eating.” Hmm. Burns cracks his tooth on an object that he didn’t preserve and can’t identify, and the affected tooth suffers from some pre-existing enamel-ady. Sounds Filet-o-fishy. Yes, I actually wrote that.

And as per the dentist he visited at Wichita orthodontic care, it turns out that “Burns had no expectation of either demonstrating the identity of the object on which he allegedly bit, or, it follows, of establishing that object or substance was one that a consumer should not reasonably have expected to find in a cheeseburger.” Summary judgment upheld. What are the lessons to be learned here? 1) Be able to identify the foreign object in your burger. 2) Ensure that it is of such a quality that a consumer would not have expected to find said object in his burger. 3) This opinion would have been better if Burns had ordered the “Big N’ Tasty,” with the Court having to repeat “Big N’ Tasty” throughout the opinion. 4) All of you must immediately head to your local McDonald’s, because the McRib is back for a limited time. No I am not kidding. Try it, and you will love it.