As you can imagine, we here at Abnormal Use are big fans of the United States court system.  We recognize that it’s not perfect, but, on balance, it does a pretty good job protecting the rights of litigants–both plaintiffs and defendants.  The lawyers helping with bankruptcies in Oklahoma City area say that some lawsuits are just ridiculous.  We are not advocating that some people be denied access to the court system.  What we might want, however, is for lawyers to sometimes take a step back and ask potential clients, “Do you really want to bring this before a judge?”  Below are two lawsuits we found recently that might have benefited from such an inquiry.

The case of the prematurely fading lipstick:

The Wall Street Journal Law Blog recently posted about a new suit seeking class action status against Maybelline, a cosmetics company that sells lip gloss and lipstick lines that it claims will last for 10 hours and 14 hours, respectively.  The plaintiffs allege, as you can imagine, that the lip color does not last nearly as long as advertised by Maybelline and have filed suit in Manhattan federal court. That’s right.  A New York federal court is going to have to decide if Maybelline has violated federal law, as well as consumer protection laws in New York, Michigan and New Jersey, simply because women might have to re-apply lip color more than once every 10 hours.

The case of the beer bottle in the bar-room brawl:

Hat tip:  Overlawyered:

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment.

I would love to see a total bill for the court fees, lawyer time and expenses, and pro-rated judge, court reporter, and bailiff salaries that were incurred just getting this thing thrown out.  One of the comments on the Overlawyered blog suggested that the plaintiff’s lawyer be sanctioned under Rule 11.  Not sure we’d go that far, but this one definitely doesn’t pass our smell test.

Forum shopping fiasco:

While we’re on the subject of questionable moves in the legal world, I noticed a story in the Wall Street Journal on September 24, 2012 about the Philadelphia Court of Common Pleas.  Apparently, budget cuts prompted Judge Pamela Dembe to throw wide the doors of Philly’s courthouses for lawsuits–and, in turn, open the court’s wallet for filing fees.

As the story noted, lawsuits–primarily in the asbestos and pharma areas–exploded “from 550 in 2008 to nearly 2,700 last year.”   A new administrative judge, John Herron, is trying to clean up the mess that Judge Dembe’s invitation created for the court system up there.  As Judge Herron commented in the story, “Courts should not be in the business of making money.”  In our opinion, such blatant forum shopping should not be condoned–let alone suggested or supported.

Hot beverage litigation lore now has a new chapter – “Tea, Airplanes, and Bulkhead Seats.” According to The City Paper, a Tennessee woman, Angelica Keller, has sued Southwest Airlines after spilling hot tea in her lap mid-flight. Keller spilled the beverage when attempting to pry loose a tea bag wedged between two cups. Apparently, Keller was seated in the first row of the plane, so she did not have an available drop down table to rest the cups. Before she could unbuckle her seat belt and stand up, the hot tea spread around the seat cushion, allegedly causing her second degree burns. Thereafter, she filed suit against Southwest, alleging that the airline failed to warn her of the hazards of delivering a hot beverage during a flight in a bulkhead seat.

On the one hand, this matter sounds eerily similar to the infamous McDonald’s hot coffee case. Passenger injured while holding a hot beverage in her lap. Burns exacerbated by sitting in the liquid. Facially ridiculous lawsuit to follow. Abnormal Use picking up the story.

On the other hand, this case does have some intricacies that may distinguish it from its coffee predecessors. Notably, due to her mode of transportation, the plaintiff was under the control of the defendant. It is at least arguable that the accident could have been prevented had Southwest provided tables for the bulkhead seats. Moreover, unlike the consumer who purchases hot coffee and is free to go wherever he chooses, an airline passenger confined in a packed seat thousands of feet in the air has no such luxury.

Unlike the hot coffee cases which allege that restaurants are serving an unreasonably dangerous product, this suit alleges that Southwest is negligent for serving hot liquids on a potentially turbulent flight. An interesting concept, that is. Interestingly, the plaintiff does not appear to allege that the spill was caused by turbulence, but rather, by her own conduct.

Regardless of their differences, this suit has one glaring similarity to the hot coffee cases before it – the beverages are meant to be served hot. Users should assume the risk of burns when handling a known (and desired) hot liquid.

As we posted last week, there’s a new “popcorn lung” case on the block.  Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case.  While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment.  Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring.  This new case involves a Plaintiff who just REALLY liked popcorn.  He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis.  One purported cause of bronchiolitis obliterans is the chemical diacetyl.  Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn.  The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day.  At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung?  By eating popcorn.   A LOT OF POPCORN.  This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years.  He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans.  While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million).  The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.  A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages.  They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?