Abnormal Use Presents Live Webinar on McDonald’s Hot Coffee Case

For nearly 20 years, the story of the New Mexico woman awarded millions of dollars after burning herself with McDonald’s hot coffee has been a fixture of litigation lore.  To many, the case is an example of the need for tort reform.  To others, it represents a success of our tort system.  But what really happened in the Stella Liebeck McDonald’s hot coffee case?  Why has one cup of coffee prompted so much discussion of our litigation system? Well, guess what? You can now learn the answers to those questions from us – on a brand new live CLE webinar tomorrow!

As you know, we here at Abnormal Use have written extensively on the McDonald’s hot coffee case.  We have presented you with an extensive FAQ file on the litigation.  We have offered our review of Susan Saladoff’s recent Hot Coffee documentary.  We continue to keep you apprised of news on the hot coffee litigation front.  Our work on this subject has been cited by both NPR and The New York Times.  Now, dear readers, we are pleased to announce that Abnormal Use is set to give you hot coffee news like you have never seen it before – live over the interwebs!

So, here is your chance to finally interact with us in real time on this controversial topic! Tomorrow, on Thursday, October 20, 2011, we will present an online CLE webinar on the Stella Liebeck McDonald’s Hot Coffee case.   Due to the amount of comments on our hot coffee posts, we know you would relish the opportunity to hear our presentation and pepper us with your comments and questions.

The webcast – sponsored by Thomson Reuters – will be conducted tomorrow from 10:30 am – 11:30 am (EST) and has been approved for CLE credit in about 40 states.  You can sign-up here.  The cost of the CLE is a mere $135, and participants will be provided with course materials (prepared by your friends at Abnormal Use), an hour-long audio presentation, and the opportunity to submit questions to us during the webinar.

Some familiar names from Abnormal Use will be presenting, including Nick Farr and our editor, Jim Dedman. To show that this webcast is kind of a big deal, we have also called in Gallivan, White, & Boyd, P.A. senior partner Howard Boyd to offer his wisdom on the subject matter.

We hope you’ll be able to join us tomorrow. If you can’t make it, you can always listen to the presentation – and earn CLE credit – later by accessing the presentation in the Thomson Reuters/West Legal Education webinar archive at your convenience.

You can access all the information about the webinar here.

Possessions: The Top 6 Paranormal Products on eBay Right Now

Halloween is just around the corner. And so it’s only fitting that Abnormal Use should take a moment to appreciate products from a spookier perspective. For your reading enjoyment, we present the following Top 6(66) haunted / possessed products, currently available at eBay. Who knows if they will lead to products litigation?

Number 6: Possessed / Haunted Ouija Board

Item No.: 280754565708
Price: $89.00
Bids: 0
Returns: 3 Days / Money Back

Ok, confession time. I have never personally played with a Ouija Board. But I have been present when Ouija Boards were broken out and played with. They blow my mind. I don’t understand them, and for the few times I’ve been present, there is no way the participants were moving the planchette. Also, I was way older than I should have been when I learned that Ouija was not spelled Weegee. Color me embarrassed.

Anyway, the reputation of Ouija Boards precedes them. Which should make for an easy sale of the Ouija Board at issue. Not so. As with most products, when it comes to making a sale, the art is in the pitch. Here, the pitch is lack-luster. The Ouija Board is allegedly possessed by the spirit of the seller’s friend’s dead husband. Yawn. We need more! Did the dead husband die a violent death? Was he involved in a murder / suicide? Did he get sucked into the Ouija Board by some spiritual accident? To justify dropping $100 on this board, I need to know more than the fact that some chick’s dead hubby is hanging out in limbo carrying on casual conversation with the living through a board game. Does he also haunt Scrabble? Or checkers? How about when the wife dies? Will she haunt Bunco? So many loose ends.

Also, as a final observation, if you’re going to sell something haunted / possessed, you really shouldn’t have a return policy. The cache with selling items of paranormal personal property is that you want them gone. It’s hard to maintain your credibility if you’re willing to offer a money back guarantee to folks who are not pleased with their haunting experience.

Number 5: “Paranormal Lucky Rabbit’s Foot”

Item No.: 150676485777
Price: $49.99
Bids: 0
Returns: Not Accepted

This item is exactly what you think it is. It’s a pink, fuzzy, rabbit’s foot key chain. Nothing spooky about that. Except that this key chain is “possibly haunted [or] possessed.” For $49.99 it better be! A regular, un-haunted, un-possessed rabbit’s foot key chain retails on eBay for $2.99. What on earth (or beyond) allows this particular item to command the paranormal premium? Unfortunately, the seller has no idea. By his own admission, he’s “unsure” of how to access the lucky aspects of the charm or “[h]ow they are brought about.” There’s not even a spooky story to go with the sales pitch. So, we’re left with an item that may or may not be haunted / possessed; and even if it is, there’s no user manual to tell us how to get at that dirty black magic.

So whose fault is that? According to the seller, it’s your own fault. “This item is only for the believers and enthusiasts of the paranormal world.” In other words, if you buy the item and you don’t have good luck, it’s user error. You’re not a true believer. And if you are a true believer, our seller asks, “[h]ow much is luck worth? Hundreds, thousands, millions? I wouldn’t know, but I’m going to start this auction at only $49.95.” The fact of the matter is that if the seller is able to pass off a rabbit’s foot at $50 apiece, he needs to hold onto it.

The more important question here is what haunts the rabbit’s foot? The seller never tells us. We can only presume it is the ghost of the rabbit that the foot used to be attached to. And if that’s the case, the rabbit was never really that lucky to begin with.

Number 4: Items from the Krausemueller Estate

Item 1: Haunted Possessed Devil Doll from the Gates of Hell
Item No.: 360401339932
Price: $999.00
Bids: 0
Returns: Not Accepted

Item 2: Haunted Spirit Possessed with Scrying Mirror–the Power to Alter Your Future!!!!
Item No.: 360401338813
Price: $499.00
Bids: 0
Returns: Not Accepted

These items get instant spooky-street cred just for the fact they are shipped from the “Krausemueller Estate.” In terms of frightening languages, German ranks right at the top. In fact, I will go so far as to say that German should become the official language of Halloween. For instance, compare and contrast: Trick or Treat vs. Suesses oder Saures. A kid that screams Trick or Treat has done just enough to earn a fun-size Snickers. A kid that screams Suesses oder Saures will have candy heaped upon him by frightened homeowners as “protection” from their homes being destroyed by Blitz-Saures.

But I digress. Additional respect goes out to the Krausemueller Estate crowd for teeing up their products with elaborate stories. The Devil Doll is alleged to cause visions of children being tortured. The scrying mirror . . . . well, I had to Google that. Apparently, scrying mirrors are used as media for psychic visions. The best example of this in popular culture is the game Bloody Mary. Anyway, the Krausemueller Estate has lengthy stories of how they came into possession of these demonic toys. It’s a fun read if you’re into that sort of thing.

Number 3: Haunted Paranormal Metaphysical Demonic Entity Possesses Doll Wicca Occult Djinn

Item No.: 330618918480
Price: $169.99
Bids: 0
Returns: None

Immediately, the prospective buyer is greeted by creepy music. That’s a subtle, yet classy touch. Additionally, the seller pitches his product with a pretty good story, which is appreciated. The story is even Halloweeny enough: “Over 20 different sounds have been heard that are very unearthly and rather demonic in nature.” But as you read on, you learn that the entity possessing this doll is not so much demonic in nature as he is just downright immature. “[The doll] likes to make obscene noises that resemble flatulence. No odours [sic] were noted.” Well that’s good news. Basically, this “demonic doll” is just the re-incarnation of the Ghost of College Roommates Past.

This seller adds a nice touch though. He includes a product warning and disclaimer of liability. “By bidding on this auction, you agree that the seller is not responsible for any paranormal activity that may or may not occur once the item is yours. . . . The law states that paranormal and metaphysical items are to be used for entertainment purposes only. We will not be held responsible for any result or activity which may arise.”

We’re not exactly sure of what law he’s referring to regarding disclaimers of paranormal and metaphysical activity. But if this whole selling evil dolls thing doesn’t work out, maybe he’s got a bright future in practicing law. There’s probably a niche for drafting paranormal or metaphysical contracts. The downside is that’s probably how he’d be paid, too.

Number 2: Haunted Vampire Doll Possessed with 3 Succubus Spirits!

Item No.: 187736191669
Price: $121.00 (Buy It Now for $227.11)
Bids: 0
Return: 3 Days / Merchandise Credit

Immediately upon opening the product description site, you know you’ve made a good choice coming here. Haunting music starts playing, and the first text you encounter is: “Warning: Never has there been a doll this active!!! If you cannot handle the doll, you must destroy it.” What’s so awful about this doll? Well, there’s a host of side-effects of doll-ownership that I can’t list because they are too crude for this website, even by my low standards. Here’s just a taste: “Do [other dolls] make you sleep walk and eat raw meat, even squeeze blood from a steak and then put in a glass to drink? . . . . You will feel this doll, hot and cold spots, have psychic communication, erotic visions, as well as poltergeist activities.” For other, more descriptive, hilarious descriptions of side-effects, I strongly encourage you to go check out the product page.

The descriptions alone would justify the high ranking on this very definitive, authoritative list. But there’s also good customer service. The seller provides specific product instructions on what to do if you do not want the evil doll / trio of succubi in your life. “You must wrap [the doll] in a white cloth and surround her with the sea salt I will send along.” Seems arbitrary, but if it’s effective, who am I to judge? Also, Holy Water is included in the price of purchase. Seriously.

Update: We could not link to this page because it appears to have been taken down.  Let this be a lesson if you’re thinking about selling vampire erotica on eBay.  You people know who you are.  And I’m talking to you.

Number 1: Coconut Wood Rings

Item No. 1: Powerful Revenge and Unlimited Wishes Granted
Item No.: 110757656824
Price: $18.00
Bids: 1
Returns: 3 Days / Exchange Only

Item No. 2: Basilisk King Possessed Haunted Ring Extreme Protection–Grants Unlimited Wishes
Item No.: 110757657338
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

Item No. 3: Succubus Demon Possessed Haunting Ring Alters Your Body–Does Grant Endless Wishes
Item No.: 220875341981
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

Item No. 4: The Real Oni Demon Possessed Shapeshifter Power Haunted Ring of Unlimited Wishes
Item No.: 370549777273 / 250908436558 / 250908442903
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

If there were such a thing as the Crazy Scale, these items would bury the needle. Despite having different names / auction numbers, each of these items is the same: it’s a purple misshapen ring made out of coconut wood. The beauty of this product (and the reason it ranks so high on the list) is because of the descriptions. Sometimes, the ring derives its power from the great Egyptian Sphinx. Sometimes, the ring’s power comes from the lost Mayan city of B’aak. (If you’ve never heard of B’aak, don’t worry about it. Neither has Google.) Still other times, the power comes from a cult of Japanese cosmologists. Whatever, who cares where it comes from? The point is what these rings can do. Which is everything that is awesome.  These rings will: (1) improve happiness; (2) improve sexual performance; (3) convey the secret of invisibility; (4) allow powerful revenge; (5) heighten your senses; (6) make you famous; (7) make you rich; (8) alter your physique; (9) increase your psychic ability; (10) allow you to summon genies and ghosts; (11) provide endless protection against all evil; (12) provide intense good luck; (13) allow attractiveness to radiate from your very soul; (14) prevent you from overeating; (15) slow the aging process; (16) give you a more positive outlook; (17) help you be aware and watch out for traps; (18) allow you to defeat your enemies; (19) ensure victory against all odds; and–I kid you not–(20) provide booty enhancement.

Now, I know what you’re thinking. If you had a ring that could allow you to conquer everything and give you a booty enhancement, why would you price it under $20? Why not charge, oh I don’t know, a bajillion dollars? The sellers will have you know that their religion of Sphinx worship / Japanese star-gazing / Mayan BS prevents them from charging unholy amounts of money for sharing secrets of universal success. These folks are like the Franciscan Monks of gawdy trinkets, taking a vow of poverty to bring you products that look bad and do nothing.

It also doesn’t help that according to the product information page, the rings are shipped from either the Planet Kashyyyk (which is where Chewbacca and other Wookiees from the Star Wars universe come from) or Enhasa (which is a city that exists only in the Super Nintendo game “Chrono Trigger,” circa 1995). I wish I were making any of this up.

For my coup de grace, I leave you with my favorite of all the haunted Halloween products. It is yet another coconut wood ring, the Haunted Ring Oni Demon Possessed Regaining Girlfriend / Boyfriend Wild Monkey Love.

Item No.: 370549773877
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

As with the other coconut-job rings above, this ring is powered by the Sphinx / Mayans / aliens / Illuminati / Atlantis. Among other things, this ring will: (1) allow you to regain lost love; (2) give you more money; (3) open a portal to the spirit world; (4) get you the man / woman that you want to love forever; and most incredibly (5) heal brain tumors.

In terms of product liability, there’s a lot of take-aways here. If you’re going to sell a piece of demonic property, it’s a good idea to include an appropriate warning and a disclaimer of liability. That way, when your evil doll comes to life and goes on a homicidal rampage, you can tee up assumption of risk as an affirmative defense. They can’t say you didn’t warn them! Perhaps the most important lesson is summed up in the phrase “Caveat Emptor,” especially when you consider its modern corollary from P.T. Barnum, “There’s a sucker born every minute.”

Now if you’ll excuse me, I have some Christmas shopping to do. Rings and dolls for everyone. Happy Halloween to all. Seusses ober Saures!

“Drive” Sued for Failure to Live Up to “Fast and Furious” Legend

Last month, the thriller Drive starring Ryan Gosling opened in theaters nationwide.  From what we can discern from the film’s trailer, its follows a Hollywood stunt driver and his perils following some dirty-handed contract work.  For those who need a touch of romance alongside their action, the driver falls in love with the married woman whose family he entered the contract to protect.  Or something like that.  We here at Abnormal Use have not seen the film, but we think it looks somewhat entertaining.  One litigant, however, wants her money back.

A Michigan woman has filed a lawsuit against the film’s distributor, FilmDistrict, and the Michigan theater in which she saw the film, seeking a refund of her ticket price.  Yes, we know it sounds absurd to accumulate legal fees and court costs over an $8 ticket.  The movie can’t be that bad, right?  After all, it did gross nearly $12 million (with a $15 million budget) during its opening weekend.  If people can sit through three hours of The English Patient without feeling the need to sue its distributor, Drive must be horrible. Oh, and here’s the best part: She wants to certify the suit as a class action!

What could possible make Drive so horrendous that a federal class action lawsuit becomes necessary to save cinema goers from seeing it?  According to the lawsuit, the woman claims that FilmDistrict marketed Drive as being very similar to The Fast and the Furious when, in actuality, the film “bore very little similarity to a chase, or race action film . . . having very little driving in the film.”  Oh, the horror!

After you have regained your composure, let’s take a closer look at these allegations.  First, is the plaintiff really claiming she has been damaged because Drive did not meet the high standards of The Fast and the Furious?  Seriously?  While Fast was the career high point for both Vin Diesel and Paul Walker, it is a movie that can only be enjoyed along side a $3 bottle of gas station wine.  Claiming that a movie is dissimilar to Fast should be considered a compliment.  If the plaintiff claimed she had been duped into watching a pseudonymous Fast sequel, we would feel her pain.  After all, the fact that five Fast films have already been made is a grave injustice to the film industry.  But the fact that the plaintiff is actually complaining that the move is not like Fast is beyond our comprehension.

Second, even if we assume Fast has some cinematic merit, was Drive really trying to market itself as such?  Take a look at the Fast trailer from 2001. To the plaintiff’s credit, there are a lot of similarities between the two trailers.  Both have cars.  Both show people kissing.  Both have dramatic music as a background.  We can see how the plaintiff might see a resemblance.  Despite all these similarities, however, the movies are not marketed as one in the same.  In the Drive trailer, it is apparent that the movie has some story line.  After watching the Fast trailer, all we know about the film is that the actors do something in cars, and they like to do it fast.  Of course, it was probably hard to reveal a plot in the Fast trailer considering the film’s utter lack thereof. Oh, well.


Friday Links

Superman appears to be cross examining Lois Lane on the cover of Superman’s Girlfriend Lois Lane #100, depicted above and published way, way back in 1970. “Lois, do you deny having had this fight with Lana Lang?,” asks Supes, as he holds a photograph of Lane fighting Lang. “And after it you killed her – in cold blood?” he exclaims. Lois replies: “No! No! I’m innocent!” Meanwhile, a police officer notes that the lie detector needle “jumped like crazy” and that Lane will be executed. Uh, first off, we don’t think that polygraph evidence is going to be heard by the jury. However, we suspect that this scene may be illustrative of some deeper problems that Lois and Supes are having in their relationship. Back in April 2010, we showed you the cover of Superman’s Girlfriend Lois Lane #99, which shows Lane on trial for this very crime. And earlier this year, in May, we showed you Superman confronting convict Lois about another series of crimes and her resulting imprisonment. What’s up with all that?

Bill Latham at The HyTechLaywer Blog alerts us to a campaign by Nancy Patterson of litigatortechnology.com to create a “Legal” category in the Apple iTunes App Store. Not a bad idea, that. As Patterson notes, there is a medical category, so why not a legal one? There’s certainly lots of legal apps. See here for more information.

Just when you thought Steve McConnell of the Drug and Device Law blog had topped himself with his post a few weeks back citing Nirvana, R.E.M., and The Beatles, he outdoes himself yet again. This past Monday, McConnell summarized a new Southern District of Ohio pain pump case using George Harrison song titles as a handy gazetteer. See here for the full post. (Although, we do wonder about the absence of “Got My Mind Set on You.”).

It’s off-topic for a law blog, but you might want to read this post The Signal Watch explaining why the author hates, above nearly all other things, talking about music. We are crestfallen.

Don’t forget; you can become a fan of Abnormal Use on Facebook by clicking here! And we’re on Twitter here!

Statutory Construction: What is a “Documentary” Film?

As lawyers, we are prickly curmudgeons with respect to definitions, and all of the talk this year about documentary filmmaking prompted much disdain on our part over the use of the term “documentary.”  That word suggests some type of objectivity; Merriam-Webster’s online dictionary uses words like “factual” and “objective” in its definition.  A documentary filmmaker takes his or her camera to the scene of a series of events or profiles a particular person or persons and provides the most objective view of the subject of the film.   A documentary film is successful, we think, when both the subject of the film and those who are critical of the film’s subject matter agree that it is an accurate representation.  Thus, that factual and objective depiction – complete with the proper context – can prompt serious debate and discussion about the events depicted without falling victim to cries of bias, improper editing, or other editorial tricks of the trade.  But that’s not what documentaries do these days.  Just this year, we’ve written about would-be documentaries by Plaintiff’s lawyers advancing a litigious agenda (that being Susan Saladoff’s Hot Coffee) and disgruntled former litigants making films advocating tort reform (that being Brian J. Kelly’s InJustice.). These are filmmakers with agendas; they seek to convince viewers of a point and call them to action.

These are not documentarians; they are editorialists. There is, of course, a place in film for subjective editorializing, just as there is a place in a newspaper for an editorial and op-ed page. Heck, we here at Abnormal Use engage in editorializing every day and would not purport to be objective reporters of fact (unless we tried really, really hard to do so and specifically made that claim).  However, we do not generally bill ourselves as reporters or documentarians, and thus, we free ourselves of the constraints of journalistic objectivity.

We think that Saladoff, the former trial lawyer and producer of Hot Coffee, and Kelly, the former litigant and maker of InJustice – are editorialists.  They admit that they have an agenda, and they concede that they are trying to change people’s minds by showing them things they may not have seen before.  Their films are the work of advocates.  Thus, the term “documentary” is misleading when applied to their films, especially in light of  Saladoff’s representation that she is offering “the truth behind the McDonald’s case.”  Saladoff is a plaintiff’s lawyer with an agenda who has turned film maker; Kelly is a citizen who had an unpleasant encounter with the legal system who has a Washington PR firm with Bush administration alumni promoting his film effort. There’s nothing wrong with their decisions to make films to express their opinions about the American civil justice system; it’s just wrong to call them documentaries.

We suspect there would be similar charges of bias if we here at Abnormal Use produced a documentary on the merits of tort reform – the first complaint we would expect to hear would be that defense lawyers at a large southeastern civil litigation firm were attempting to change the minds of potential jurors.  (Kelly faced similar criticism with InJustice, and in fact, those charges of “bias” were leveled against us when we criticized Saladoff’s film). Similarly, we pointed out the potential bias of Saladoff, whose Facebook page explicitly requests viewers to “take action” and write letters to the editor to advance the film’s mission. (We’ve included in this post a few screencaps from the Hot Coffee official Facebook page indicating how the documentary’s producers are calling for actions by viewers – not something you typically see from an objective reporter of facts).  Take a look:

We suppose there is some point where the public is aware that what is presented as a “documentary” is not, in fact, an objective narrative.  Michael Moore became know for such films as Roger & Me, Bowling for Columbine, and Fahrenheit 911, all of which were documentaries, in the sense that they were not narrative fiction, although they certainly had an editorial agenda not implied by the use of the term “documentary.”  There’s always a conservative would-be documentary popping up in response to Moore’s films, as well, but again, those too have agendas. Whatever the case, when the public learns of a new Moore film, they are not expecting an objective documentary. But when an unknown filmmaker like Saladoff or Kelly appears on the scene purporting to expose truth, we must be mindful of the term.

Incidentally, and perhaps ironically, we did attempt to make one objective piece of reporting on this very case.  Please direct your browser to our “Stella Liebeck McDonald’s Hot Coffee Case FAQ” for an editorial–free question and answer session about the underlying facts of the infamous hot coffee case, the trial thereof, and the post trial developments.  We thought it might be helpful if there was at least one place on the Internet where there was an objective retelling of that case using only the original documents from the trial and early 1990’s media coverage thereof.  If you want to learn the facts of the case, that is a good place to go.


Utah Court of Appeals Affirms Summary Judgment in Case of Postal Worker vs. Mailbox Manufacturer

In Niemela v. Imperial Manufacturing, Inc., — P.3d —, No. 20100682, 2011 WL 4485978 (Utah Ct. App. Sept. 29, 2011), the Utah Court of Appeals reconsidered a trial court’s grant of summary judgment against a postal worker who sued the manufacturer of mailboxes.  Patricia Niemela delivered mail for the United States Postal Service in a neighborhood in which mailboxes installed by Imperial Manufacturing had been installed.  According to Niemela, the mailboxes were defectively designed and manufactured, allowing them to take on water and freeze when the temperature dropped.  She was forced to use tools to break up the ice, which allegedly caused her to sustain hand injuries.  As noted by the court, Niemela brought claims for strict liability, negligence, and breach of implied warranty against the manufacturer:

In her products liability claim, Niemela alleges that the Imperial mailboxes contained design and manufacturing defects rendering them unreasonably dangerous. She seeks to demonstrate these defects by showing that the mailboxes did not conform to the 2001 USPS regulations, notwithstanding the fact that the mailboxes were designed and manufactured in 1995. Imperial responds that (1) the mailboxes must be presumed nondefective because they complied with federal regulations in effect when they were designed and manufactured, and (2) Niemela has not presented sufficient evidence to overcome this presumption.

The Court of Appeals affirmed the entry of summary judgment against Niemela and reiterated the trial court’s reasoning.  At the time the mailboxes were manufactured, they complied with the USPS regulations.   Citing a statutory presumption from the Utah Code, the appellate court observed:

There is a rebuttable presumption that a product is free from any defect or defective condition where the alleged defect in the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were in conformity with government standards established for that industry which were in existence at the time the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were adopted.

In order to overcome the presumption, the plaintiff must prove by a preponderance of the evidence that the product is unreasonably dangerous.  Niemela could not do so, because her bald accusations about certain aspects of the mailbox were not supported.  In the end, all she had was an allegation that she was injured, and therefore there must have been something wrong with the mailboxes.  It was not enough.

Who Says Numbers Don’t Lie?

On occasion, we here at Abnormal Use write about evidentiary issues, usually pertaining to the intersection of law and science. It is at this intersection that we find conflict, sometimes severe, regarding the standards for admissibility of expert testimony. This area of the law is usually a fertile ground for discussion, and the facts are generally pretty intriguing. And so it goes with today’s post. Let me preach on it.

Recently, friend of the blog Steve Mirsky (of Scientific American fame) alerted us a piece in The Guardian reporting on a court that had refused to allow an expert to testify in the field of mathematics. This piqued our interest, so we decided to look into the matter a little further.

The specific case that Mirsky was referring to was a murder case from England. The prosecution’s theory was that the crime was committed by a person wearing a specific type of athletic shoe whose sole had been worn down in a particular way, leaving a particular type of tread pattern behind. It was alleged that the defendant, coincidentally, had shoes whose sole matched the particular tread pattern. We understand from our friends who practice criminal defense that the legal term for such information is “a really bad fact.”

The prosecution wanted to take the really bad fact a step further. They wanted to call a statistician who would apply a mathematical proposition known as the Bayes’ theorem to the facts of the case. Basically, the Bayes’ theorem is a mathematical expression of common sense. It addresses the probability that a given event could occur given the concurrence of certain circumstantial facts. For example, let’s say that a hit-and-run fatality occurred in South Carolina and all that was known about the suspect vehicle is that it was a gray sports car. As a matter of mathematical theory, it is possible to determine the probability that the suspect car was – say – a Maserati (or any other type of car). Naturally, the more specific factual input that is provided, the less probable it is that an event consisting of all that input could occur.

And that’s probably why the English judge had such a problem with admitting expert testimony about Bayes’ theorem with regard to a criminal case. From the judge’s perspective, the statistician would testify about how improbable it would be that a defendant would have just the right pair of shoes, with just the right sole pattern, as compared to police observations of the murder’s physical evidence. Our common sense would tell us that it’s just too much of a coincidence that the defendant would have so much unusual information in common with the suspect. And that therefore, the defendant must be guilty.

But not so fast. Before we throw the book at someone based on coincidence, perhaps we should ask how many people in the relevant sample (here, England) had the same type of shoes as the suspect? If the answer to that question were 1, then the correspondence of circumstantial evidence about the defendant as compared with the suspect would become more than just a convenient coincidence. However, the further the number moves away from 1, the less relevant the statistical evidence would seem to become. In the case at hand, the number seemed to be in the order of several hundred thousand pairs of the same types of shoes had been sold around England over 10 years. Consequently, it is possible that there could have been tens, hundreds, maybe thousands of the exact same types of shoes with consistent wear patterns.

Let’s be honest about ourselves for a moment. Human nature is susceptible to drawing firm conclusions about truth and innocence based upon the coincidence of circumstances that we believe to be highly improbable based on our common sense. This is especially true when what we believe to be common sense is backed up by “science.” When it comes to statistical evidence, without knowing the relevant sample size, we really can’t evaluate in a reliable fashion how probable or improbable the circumstances are of a given event. And without having that confidence in the statistical testimony to be offered, believing that it is likely to lead to unfair extrapolations of truth and innocence, it is better to simply exclude the testimony altogether. And while we’re being real, if a criminal prosecution comes down to specious statistical evidence, the case was never that strong to begin with.

The analysis of this case reminds us of the famous quip: “There are three kinds of lies: lies; damned lies; and statistics.” Criminal convictions must be based on sterner stuff. There may be room for statistical evidence, and there often is. But statistical evidence must have the same indicia of reliability as other types of expert testimony; otherwise, there is a 100 percent chance that it must be excluded.

Hot Coffee: The Drink That Keeps On Giving

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.

Don’t Forget; Today’s A Federal Holiday

Don’t forget: Today is Columbus Day and an official federal holiday.

Accordingly, the post office and federal courthouses will be closed.

Friday Links: Steve Jobs (1955 – 2011)

STEVE JOBS (1955 – 2011)

We here at Abnormal Use were saddened this week to learn of the death of tech pioneer and Apple, Inc. czar Steve Jobs. We’ve been fans of him for decades, and each day, when we use our iPhone and our iPads, we realize just how much he has changed the way we as consumers, and as lawyers, communicate with each other. Just two weeks ago, we were attending a CLE seminar in Columbia, South Carolina featuring a section called “Using the iPad in Litigation.” Pictured above is the February 15, 1982 cover of Time Magazine, almost thirty years old, showing that Jobs was making innovations even then. (See its Time Magazine Cover Gallery entry here.). Now, today, two days after his death, we pause to reflect upon his life and legacy and how his creations affected and influenced our daily lives.

I myself have had a long history with Apple Computers. As an elementary school student, I used an Apple IIe in computer class to learn the Logo programming language (and, of course, play The Oregon Trail). At home, I first began using an old school Macintosh computer – one of those clunky old boxy ones – in the mid to late 1980s. My mother, a freelance graphic designer at the time, brought one home one day.  Many grammar school homework assignments made their way through that old Mac (though I always preferred to play Shufflepuck Cafe).  Later, in high school, as the editor of the school newspaper, I used Macs to cobble together our monthly publication after school in the old journalism classroom (although staffers would often switch over from Aldus Pagemaker to Sid Meier’s Pirates!).  There was a point where I really, really wanted to buy a NeXT computer, although that never came to be. In college, working in the editorial department of the student daily, I used Macs and the QuarkXPress platform each day to design opinion pages.

Somewhere along the way, though, I reverted back to PCs. Even as a college student, I used a Dell as my home computer. I was a PC user for many years after that. It wasn’t until 2004 that I finally came back into the fold. It was April of that year, and I was in Los Angeles visiting an old friend, Daniel Loyd, who had a new device: a third generation iPod. That day, driving around L.A., we listened to a host of terrible heavy metal songs, simply because we could do so in such an easy fashion. (Dan makes a living as an editor using an Apple computer and Final Cut Pro). Within the week, I had bought my own iPod, and I’ve bought at least four of them since that fateful day in California. I was hooked. Every computer I’ve bought since has been made by Apple, including two successive desktops and a laptop. I’ve gone through three models of iPhones already (and I anticipate pre-ordering the new iPhone 4S sometime today – the first day one can do so). And of course, just a month ago, I bought an iPad, which is one of the most fun purchases I’ve made in many, many years.

With the iPhone, we are able to accomplish with a single device tasks that previously required multiple devices. Remember the old days, not so long ago, really, when traveling out of state, you’d have to take a laptop, Blackberry, cell phone, and iPod? Now, just one Apple product can cover for all of those devices. It’s a marvel. The products make you wonder how you ever lived without them.

What’s the legacy of Steve Jobs? Many have contemplated that over the course of the last two days in pieces far more eloquent than these words here. Really, though, he brought into existence the types of devices we’d previously only seen on Star Trek.

That’s a pretty good epitaph. May he rest in peace.

The last two days have seen many tributes to Jobs from the blogosphere. We would encourage you to take a look at this piece by Jeff Richardson of the iPhone J.D. blog as well as this article by Ben Stevens of The Mac Lawyer blog. Those are two of our favorite Apple-related blogs. We’d also recommend this post from The Rainmaker Blog and this entry from the Associate’s Mind blog.