Armstrong Sued Over “Fraudulent” Autobiography

Lance Armstrong and his confession have been all the rage as of late. We here at Abnormal Use are apathetic, as we are neither fans of cycling nor Sheryl Crow’s ex-beaus. Others are outraged by his admission to doping – some even to the point of filing suit.

According to a report from USA Today, two men filed suit against the seven-time Tour de France winner in a California federal court alleging that Armstrong’s autobiography, It’s Not About the Bike, is a fraud. The men claim the book contains falsehoods about how Armstrong was able to perform at such a high level on cycling’s biggest stage. In support of its allegations, the suit cites Armstrong’s recent confession to Oprah Winfrey that he used banned drugs or blood transfusions during each of his Tour de France victories. The men claim that they would not have bought the book had they known “the true facts concerning Armstrong’s misconduct.” The suit seeks class-action status on behalf of other readers.


As you might expect, we question the merits of this lawsuit. The men apparently seek only a refund of the book’s purchase price and, of course, their attorney’s fees. We must wonder if the men have sought refunds for every autobiography containing lies and inaccuracies. While we don’t have any sources, we imagine Armstong is not the first to lie in a self-penned work.  (James Frey, anyone?). Nothing good comes from mendacity, especially when the liar profits from the falsehood. Nonetheless, it is hardly worth taking it to a federal court over $29.95.

This, like many lawsuits, is not about the money. It is a reactionary suit to being duped. Feeling wronged by an idol is tough to take. It is natural to assume our heroes walk on water. Despite their other-worldly talents, however, like us, they too are human. Rather that own up to our creation of an unrealistic of our heroes, upon this discovery, we often take our anger out on them.

In this case, we recognize that Armstrong played a role in creating his supernatural cycling mythos. It’s okay to be mad at him about it for awhile. Let’s just leave our anger out of a federal courtroom. Another sports star for us to worship will come along soon enough. And we guess someone will sue that person, too.

NBA Team Rests Players, Gets Sued

Late last year, NBA Commissioner David Stern fined the San Antonio Spurs $250,000 for benching its star players for a November 29th game in Miami. As you might recall, Spurs coach Greg Popovich elected to rest star players Tim Duncan, Manu Ginobli, Tony Parker, and Danny Green against the Heat for the last game of 6-game road trip. We here at Abnormal Use refrained from voicing our opinions on the fine because it was not necessarily a legal issue at the time.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.

“This is a victory for anyone who likes fun and risk activities.”

An attorney for a California amusement park company has called the company’s recent win in a bumper car lawsuit a “victory for anyone who likes fun and risk activities.”  The case involved a head on collision in bumper cars between two amusement park patrons – one of the patrons ended up with a broken wrist.  Of course, low speed collisions are the whole point of the ride.

The California Supreme Court says riders can’t sue over injuries stemming from the inherent nature of the attraction.

The lawsuit was filed by a San Jose, California doctor, Smriti Nalwa, who fractured her wrist while riding in a bumper car with her 9-year-old son. The injury occurred when she braced herself for a head-on collision with another car by placing her arm on the dashboard. Dr. Nalwa alleged that amusement park, Great America, failed to direct its employees to ask patrons to avoid head on collisions. To the joy of kids and kids at heart throughout the state, the court was not buying what the good doctor was selling. The court found that Dr Nalwa’s injury was caused by a collision that was a normal part of the ride and that she had assumed the risk by participating in the ride. Justice Kathryn Mickle Werdegar held:

A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions. Those who voluntarily join in these activities also voluntarily take on their minor inherent risks.

Perhaps California gets an unfair legal rap?  But then you consider the fact that there actually was a dissenting opinion. Justice Joyce L. Kennard’s dissent complains that the decision makes poor trial judges face “the unenviable task of determining the risks of harm that are inherent in a particular recreational activity.”  I think we could give that task to any 7 year-old and they could handle it.


Nap Nanny Manufacturer Fights CPSC Action

Ever wonder what happens to the companies involved in all of those recalls ordered by the Consumer Product Safety Commission (CPSC)? Many manufacturers sit back and conform to the CPSC’s demands to correct any perceived safety issues. Others publicly voice their displeasure. (We previously reported on the Buckyballs recall and the humorous company retort).

Count Nap Nanny infant recliner manufacturer, Baby Matters, LLC, as a member of the latter.

Back in 2010, the CPSC and Baby Matters issued a joint recall of the Nap Nanny following the death of an infant who had fallen from the product. Apparently, the baby harness on the first generation model attached only to the product’s fabric cover and did not adequately secure the children.  Infants using an improved second generation harness (pictured above) allegedly still ran the risk of partially falling and hanging over the side of the Nap Nanny. Following the voluntary recall, at least five additional deaths and 70 injuries were reported to the CPSC. According to reports, the CPSC then attempted to work with Baby Matters to correct the safety issues. When those discussions failed, in December, the CPSC filed an administrative complaint seeking to require Baby Matters to notify the public of the issues and offer refunds to consumers. Thereafter, the CPSC announced that major retailers (Amazon, Buy Buy Baby, Toys R Us, and had agreed to voluntarily recall the Nap Nanny because Baby Matters had refused to do so. Here’s where this tale becomes even more interesting.

According to a report from The Consumerist, Baby Matters is now seeking a dismissal of the CPSC’s complaint. Interestingly, the company takes issue with language in the CPSC’s press release announcing the participation of the retailers. Apparently, an original version of the release stated that “it is illegal to attempt to sell or resell this or any other recalled product.” The Consumer Product Safety Act only makes it illegal to sell products following a voluntary recall by the manufacturer. Baby Matters claims the CPSC waited until 6:30 p.m. to correct the statement. By this time, the release “had achieved maximum impact.” The company now seeks a retraction and clarification that retailers are allowed to continue selling the Nap Nanny during the pending CPSC suit.

We here at Abnormal Use know little about the validity of the CPSC’s safety concerns in this case. In fact, even though we are parents of infant children, we were not even aware such a product existed (although we admit it looks comfortable). We do, however, understand the CPSC’s desire for action after continued reports of deaths and injuries, but obviously, the government, when pursuing any sort of action, should ensure that its literature is, at the very least, accurate.  We’ll be keeping our eyes on this one.

Friday Links

We’re a bit perplexed by the cover of Venom: On Trial #3, published not so long ago in the halcyon days of 1997. First, there are the bizarre depictions of Spider-Man and Daredevil, both of whom are looking on awkwardly at the execution of Venom, whose trial apparently resulted in a conviction and a death sentence. But here’s the question: Why was Venom on trial in the American courts? Venom, as we all know, is an extraterrestrial life form! Here’s what Wikipedia has to say about him: “the creature is a Symbiote, a sentient alien, with a gooey, almost liquid-like form that requires a host, usually human, to bond with for its survival, as with real world symbiotes, and to whom it endows enhanced powers.” So why is he being tried in our criminal justice system?

Jay Hornack of Pittsburgh a/k/a The Panic Street Lawyer describes a recent trip to Philadelphia, where he toured the new “American Spirits: The Rise and Fall of Prohibition” exhibit at the National Constitution Center. (Jay was also able to see Morrissey in concert this past week, although that’s another story.).

Friend of the blog James Daily – of the famed and fabled Law and the Multiverse blog – has a guest post over at Wired magazine.  In it, he offers – in great detail – an analysis of the contract Bilbo Baggins – the title character in The Hobbit – enters into with a dwarf adventure party.

Once again, The Black Keys, the fine musical group, are in litigation.


Florida Case Provides Insight on Learned Intermediary Doctrine

As we have discussed in prior posts, warnings involving medical devices and/or prescription drugs are issued not to the end user patient, but to the doctor prescribing or using the device.  This does not, however, release the drug or device manufacturer from the duty to adequately warn of the dangers of using the device or product.  In fact, it simply complicates the issue of what an adequate warning looks like. Take the recent case of Horrillo v. Cook Inc., 10-15327, 2012 WL 6553611 (11th Cir. Nov. 7, 2012) [PDF].  This case involved a stent manufactured by the defendant and approved by the FDA for use in bile ducts.  Dr. Michael Rush, however, used it during his angioplasty surgery on Margaret Horillo, not in a bile duct, but in her renal artery.

Within 24 hours of the procedure, Ms. Horillo suffered a serious stroke.

The warnings included by the manufacturer read as follows:

First, it stated that the device was “intended for use in palliation of malignant neoplasms in the biliary tree,” which is to say, treatment for cancer in the bile ducts. Second, under a heading entitled, “WARNINGS,” the instructions for use cautioned that “[t]he safety and effectiveness of this device for use in the vascular system have not been established.”

Deposition testimony in the case, however, revealed that stents such as this one were regularly used “off label” in the vascular system.  In fact, Dr. Rush had used this particular stent in the past in renal arteries.  The off-label use was so widespread, in fact, that the FDA called Cook and several other such manufacturers together about the issue before this surgery was performed.  As a result of that meeting, Cook sent a letter to the hospital where Dr. Rush did the surgery warning of the risk of stroke.

In his deposition, Dr. Rush testified that he was aware of some risk of using the biliary stent in the vascular system.  The degree to which he knew of the risks, however, became the primary issue in litigation.  At the trial level, the magistrate concluded that Dr. Rush was fully aware of the risks, applied the learned intermediary doctrine, and granted Cook’s motion for summary judgment.
The appellate court was not so convinced.  As the court stated, the issue was whether Dr. Cook’s knowledge was equal to that of Rush.  The evidence in the case suggested that it was not, and reversed summary judgment, and remanded the case.  A good reminder that the learned intermediary doctrine comes with its own set of challenges as an affirmative defense.

Engle Case in Florida Supplies More New Law in Florida

We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).  The cases have presented interesting class action issues, as well as novel statutes of limitations issues.  On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first.  Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.”  After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim.  The circuit court denied the motion and dismissed  the complaint. Here was the issue:

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

“Fundamentally inconsistent” Jury Award Prompts Florida Appeals Court To Reverse

Juries are fickle.  There is just no getting around it.  Ask any seasoned trial attorney, and he or she can probably tell you about the jury that “got it all wrong” – not simply, perhaps, because they ruled against the lawyer’s client, but because their award or decision defied all logic. That was the issue that confronted Florida’s third district court of appeals in the case Tricam Ind  ustries, Inc., et al v. Coba, 100 So.3d 105 (Fla. Dist. Ct. App. 2012), reh’g denied (Nov. 19, 2012) [PDF].  The case centered around a ladder manufactured by Tricam Industries and sold by Home Depot.  The decedent, a civil engineer, died 10 days after falling from the ladder from injuries sustained in that fall.  The plaintiff alleged strict liability and negligence against both defendants in several particulars, including manufacturing and design defects.  At trial, the evidence focused only on the design of the ladder, however.   Specifically, the plaintiff’s expert opined that the design of the ladder was such that it could give the impression of being in the locked position when, in fact, it was not.    The defendant’s expert, predictably, opined that the ladder could not “false lock.”

Prior to closing arguments, the plaintiffs withdrew the manufacturing defect claims.  In addition, the court limited the jury instructions to design defects in both the  strict liability and negligence theories.  The jury, however, returned a verdict finding that there were no design defects, but that the negligence of the defendants was a legal cause of the decedent’s death, and awarded more than $1.5 million to the plaintiff. After trial, the defendants argued that the verdict should be set aside because the finding of no design defects was fundamentally inconsistent with its finding of negligence.  The plaintiff also moved for a new trial based on some issues with one of the jurors not pertinent to a products liability discussion.  The trial court denied both motions.

The appellate court considering the defendants’ motion reversed the trial court’s decision.  First, however, it noted that a reversal on such grounds is no small task, given the fact that the defendants had failed to object to the verdict at the time it was rendered:

The plaintiff concedes that the verdict in this case was inconsistent, but argues that the defendants waived their objection to the inconsistency by failing to object before the jury was discharged. Normally, we would agree. The Fourth and Fifth District Courts of Appeal, however, have carved out an exception to this general rule where the inconsistency “is of a fundamental nature.” Because we agree with the well-reasoned opinions of our sister courts to the north, and because there is no case in this district which has held to the contrary, we adopt the “fundamental nature” exception as applied in this context.
100 So. 3d at 108-09 (internal citations omitted).  Citing prior opinions from those districts, the Third District, which heard this case, adopted that test and reversed the verdict.

Martin Luther King Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of today being Marin Luther King, Jr. Day, we direct you to to the text of his Letter From Birmingham Jail, written on April 16, 1963, nearly fifty years ago. Today, our offices are closed in observance of the holiday.

Today, of course, is also the day in which President Obama will deliver his second inaugural address, having been officially sworn in yesterday.

(By the way, the comic book cover depicted above is that of American Heroes #1, published back in 1992 by the now defunct Personality Comics publishing company).

Friday Links

Okay, it’s come to this. We are now featuring not our first – but our second – cover of Simpsons Comics here at Abnormal Use.  So, depicted above is Simpsons Comics #107, published not so long ago in 2005. It prominently features Homer Simpsons, not as himself, but as Lady Justice. Yikes.  (Note this is quite a different take on Lady Justice than Marvel used in a recent Daredevil series.). Comicvine summarizes the plot of this issue as follows: “Homer wins Gil’s law license in a bar bet, and soon becomes Springfield’s newest and hottest lawyer, winning cases with showstopping pyrotechnics. But when Bart is accused of setting Springfield Elementary on fire, Homer’s career may crash and burn.” You know, we might have to check that one out.

Behold: the origin of the phrase “caught red handed.”

You know, of course, that we here at Abnormal Use are huge nerds.  But did you know that, 30 years ago, this was our favorite arcade game?

If did not see this sad, sad cartoon strip from The Oatmeal last week, maybe you should investigate.  It is a tear jerker. YOU HAVE BEEN WARNED. We have no liability if you get all misty eyed.

Here is a Torts Exam question from Sasha Volokh. Try it, if you will.  (Hat tip: Overlawyered).

And finally: Yikes!