Above, you’ll find the cover of Man of Steel #1, the famed Superman reboot by John Byrne published way, way back in 1986.  (If you can believe it, at least of our Abnormal Use writers here bought that issue the very day it was released, although we bet you can’t guess which one of us it was.). Although the cover is not legally themed, we’re bringing this to your attention today because Man of Steel, the 2013 movie reboot of the Superman franchise, opens today. We trust you’ll see it. Friend of the blog Ryan Steans of The Signal Watch caught the midnight showing last night.  He’s the world’s foremost Superman fan, and his preliminary, presumably spoiler-laden thoughts can be found here. We can’t bring ourselves to read his review until after we’ve seen the movie ourselves. But we’ll keep you posted.

The law nerd in you will need to read this amusing Amazon.com review of the latest edition of The Blue Book. (Hat tip: Stephen Dillard).

How long has it been since you’ve read the Abnormal Use mission statement, published in January of 2010?

Earlier this year, 5-Hour Energy manufacturer Innovation Ventures LLC d/b/a Living Essentials was hit with a series of class action lawsuits alleging that its claims of increased energy without the subsequent “crash” were false. Innovation subsequently moved to dismiss those suits. Last week, the manufacturer found out that it must continue litigating at least one of those suits after a Florida federal judge denied its motion.

At issue in these cases is 5-Hour Energy’s product statement, “Hours of energy now – No crash later.” As self-proclaimed coffee connoisseurs, we are a little too old fashioned to know the effectiveness of an energy drink’s claim. Apparently, enough consumers to organize into three putative classes think the product statement is a bit of a stretch.

In one of the suits, Guarino v. Innovation Ventures LLC, d/b/a Living Essentials, No. 13-cv-00101-GPM-PMF (S.D. Illinois 2013), the plaintiffs allege that the product statement “is not true, as admitted on the Defendant’s website and hidden behind the bottles in the display, which reads: ‘No crash means no sugar crash.’” So Innovation is falsely advertising a product by placing true statements on its website and directly on the bottle? Now we see why Innovation filed those motions to dismiss in the first place.

While its motion to dismiss may have been denied, Innovation may still ultimately prevail in this suit. Pleading sufficient allegations to survive a motion to dismiss does not necessarily make a good case. Unfortunately for Innovation, it now must embroil itself in hours of litigation defending the case. For their sake, let’s hope there is no awful crash afterwards.

A few months back, we commented on Pennsylvania Governor Tom Corbett’s antitrust lawsuit against the NCAA.  Specifically, we addressed the issue of whether Governor Corbett had standing to bring the suit.   The Federal district court has now ruled on the issue and proved our analysis to be correct — partially.  The Court dismissed the suit, and although it found that Governor Corbett and the Commonwealth lacked standing, the lack of standing was due to deficiencies in the factual allegations and the underlying claims.

In a 27 page opinion issued last week, Judge Yvette Kane dismissed the Commonwealth’s antitrust lawsuit.  As we noted in our original analysis, the Commonwealth’s standing to bring the lawsuit was based on the parens patriae doctrine. The Court essentially agreed that the Commonwealth would have standing under this doctrine if it brought a valid antitrust claim.  However, the Court did not believe that factual allegations relating to the underlying claims were sufficient to qualify as an antitrust violation and dismissed the suit accordingly.  Specifically, the Court found that there could be no antitrust violation because the NCAA was not engaged in economic activity and the facts alleged were not sufficient to show a conspiracy.

Forbes.com legal contributor Marc Edleman wrote a good piece outlining why the Court was wrong with respect to the underlying claims.  He notes how illogical it is for the Court to find the NCAA is not an economic actor given how many teams, including Penn State, generate over $100 million dollars in revenue.  With respect to the Court’s finding of a lack of conspiracy, Edleman observes that although NCAA President Mark Emmert is just one person, when independent businesses come together to form a trade association,their association-wide decisions are collective action.

It will be interesting to see if Governor Corbett appeals the ruling.  Many believe that regardless of the suit’s merit, Governor Corbett’s real motivation for bringing the suit was to boost his approval ratings. He may let this one stand given that any appeal decision might not come until after the next gubernatorial election in 2014.

Well, as we said recently in our “Seven Court Opinions That Cite The Great Gatsby” piece, we’re not turning into Buzzfeed, but we can’t resist these types of posts.
So, here are five courts which reference H.G. Wells’ “The War of the Worlds” (and/or the infamous Orson Welles radio play based on same).

1. In re B.C. Rogers Poultry, Inc., 455 B.R. 524, 548 (Bkrtcy. S.D. Miss. 2011).

“Before addressing the merits, the Court has two preliminary observations. First, the post-trial briefs, when combined, are 369 pages long with 1,272 footnotes. To put the length of the post-trial briefs in perspective, H.G. Wells’s WAR OF THE WORLDS is just over 300 pages without footnotes.”

2. Helcher v. Dearborn County,  595 F.3d 710, 724 (7th Cir. 2010) (citations omitted).

“Many of the nearby homeowners also wrote letters to the Board protesting the impact of such a structure on the scenery and on their property values. Bell and the Helchers provided photos taken largely from public roads but the Codys and other nearby residents presented views of the tower and the balloon test from farms and residences nearby. In the Codys’ altered photos, the tower rises up like a nineteen-story Martian machine from H.G. Wells’ ‘War of the Worlds,’ marring a landscape of forests and farms. The tower is not in any way disguised to resemble a more palatable structure, but stands out alone as an industrial blemish on an otherwise bucolic landscape. It is remarkably out of scale to any surrounding structures.”

3. United States v. Brahm, 520 F.Supp.2d 619, 626 (D.N.J. 2007) (citations omitted).

“The counterexample brought forth by Defendant that appears to have the greatest weight is the fictitious news broadcast with great inherent verisimilitude, such as Orson Welles’s ‘War of the Worlds’ broadcast. While the example of Martians with ray guns may not qualify as something within the reasonable belief required by the statute, it would represent the kind of intentionally false information anticipated by § 1038. A closer case, such as a fictitious broadcast of a terrorist attack on a major city with the goal of making a kind of political or artistic statement, causes greater concern, as there may be some expressive, protected speech of that type might be affected by § 1038.”

4. State v. Weary, 931 So.2d 297, 333 and n.3 (La. 2006) (Weimer, J., concurring)

“Patricia Cowart is another juror that the defendant challenged for cause based on her fixed opinions about the case. Cowart testified that she formed her opinions based on her exposure to pre-trial publicity and did not think that she could put them aside and make a decision based solely on the evidence presented at trial. Based upon Cowart’s response, the trial judge attempted to rehabilitate Cowart by making a reference to Orson Welles’ War on the Worlds FN3 and asked her if she could base her opinion on the facts and the evidence presented at trial.

FN3. The trial judge noted that Welles performed a radio show about a purported Martian invasion of Earth and that many people believed it to be true until a few days after the performance. However, they soon realized that it was a hoax based upon facts that they learned or experienced after the radio broadcast.”

5. Yovino v. Fish, 539 N.E.2d 548, 549 (Mass Ct. App. 1989)

“It was not exactly ‘The War of the Worlds,’ but some listeners were taken in. On July 16, 1982, a ‘talkmaster,’ Jerry Williams, broadcasting over radio station WRKO-AM, interviewed a comic who impersonated then mayor of Boston, Kevin H. White. ‘His Honor,’ the honorific which Williams lavished upon his guest, took calls from the radio audience. He pretended to be the mayor, although greatly exaggerating the mannerisms of the persona of the real mayor. Broad as the caricature may have been, the impersonator induced a flurry of phone calls to City Hall in which the callers made unflattering observations about what the ‘mayor’ was saying on the air. While the show was still in progress, the true mayor’s press secretary was moved to lodge a protest by telephone with the management of the radio station. Williams did not identify his guest as an impersonator until well into the program, an alarmed station management having ordered that be done.”

BONUS: Welles v. Columbia Broadcasting System, Inc., 308 F.2d 810 (9th Cir. 1962) in which Orson Welles himself litigates “The War of The Worlds.”

Last week, we here at Abnormal Use attended a CLE course offered by the South Carolina Bar on the state’s new Fast Track jury trial system. The system, authorized by an Order of South Carolina Supreme Court Chief Justice Jean Toal back in March, is a voluntary, binding jury trial before a smaller jury panel and a Special Hearing Officer selected by the parties. The Fast Track trial usually takes place within 180 days of commencement of the action.

The following points are highlights from the Chief Justice’s Order and the subsequent CLE:

First, for the Fast Track jury trial, there must be some cooperation between the parties. In fact, parties must consent to initiate the process in the first place. Once the parties consent to the Fast Track jury trial, they can stipulate to almost anything, including the admissibility of evidence, how testimony is presented, and what pre/post-trial motions are necessary. Without all these agreements, we seem to think parties would be best to keep the case on the circuit court docket.

Second, the results are binding and not appealable, so prepping the client beforehand is imperative. We imagine the smaller, Fast Track juries are just as unpredictable as their larger counterparts. Couple that with a non-judge presiding over the proceedings, and you have a potential for unexpected results – with no opportunity for appeal. As a result, Fast Track jury trials are great candidates for high-low agreements to help manage some of that risk.

Finally, Special Hearing Officers still get to wear judges’ robes. While not technically “judges,” Special Hearing Officers are at least granted the appearance in the eyes of the jury. The Fast Track system is set up to mimic the circuit court system as much as possible without expending as many of the court’s resources.

If you are practicing in the state, we encourage you to explore the Fast Track jury trial. However, we recommend leaving it to the minor car accidents and slip and falls. We doubt product manufacturers or seriously injured plaintiffs are going to want their fates tied to a system of relaxed evidence and unappealable results.

Something tells us that the confinement depicted above on the cover of Ghosts #76 may constitute cruel and unusual punishment. We’re just saying. (Note: This issue was published way, way back in 1979).

From The Hollywood Reporter: “10 Celebrity Courtroom Hairdos (and Don’ts).” How many of them can you guess before you actually click on the link to confirm? Yes, yes, everyone will get Phil Spector, so don’t feel too special for identifying that one.

Can it be true? A 1990’s nostalgia cable channel is in the works? We cannot tell you how long we’ve waited for such a development. Well, since the 1990’s.

Celebrities no longer immune to litigation or the threat thereof: Pee Wee Herman and Stone Temple Pilots. Is nothing sacred?

Whoa! Our story on the South Carolina witch house case got picked up by The Volokh Conspiracy.

Tiger Lawyer #3 is on the way, apparently. As you might recall, we’ve mentioned the Tiger Lawyer character before here, here, here, and here.

Congratulations to our own Breon Walker, who has been chosen to receive the prestigious Nation’s Best Advocates: 40 Lawyers Under 40 award presented by the National Bar Association (NBA) and IMPACT.  This award recognizes distinguished attorneys within the African American legal community who have earned the highest level of respect and distinction in their legal practice through unrelenting dedication to their profession and community. Walker joined GWB as an associate in 2011 and became a partner in 2013.

Here we go again.  Another purported case of a for-profit law school alleged to have played games with its students.  Except this time, some professors claim they also got the shaft when they tried to stick up for the students.  The Phoenix School of Law (not that Phoenix, but rather this Phoenix) has been sued by two of its former professors, who claim that they were improperly fired after raising concerns about new school policies designed to make it difficult or impossible for students transfer after their first year.

As the National Law Journal recently reported, Michael O’Connor and Celia Rumann filed suit alleging that were essentially terminated after they opposed the school’s proposed changes to policies and curriculum dubbed “Legal Ed. 2.0.”  So what the heck is “Legal Ed 2.0?”  According to the complaint, it’s a set new “improvements” designed to prevent current students from transferring to more highly ranked schools after the first year.  Among the “improvements” that the administrators considered implementing included:

1. Refusing to write recommendation letters for transfer students;
2. Reordering mandatory first-year classes to render them incompatible with other law schools; and
3. Adopting a pass/fail grading system for 1Ls to prevent competitors identifying top students.

Yeah, that sounds exactly like the kind of school that is looking out for the best interests of students.  Perhaps this sort of thing should be expected when a school’s stated goal is to make $$$$ and they’ve got upwards of 15 percent of students transferring after the first year.  Maybe the school could spin this as a free business lesson to all of its students.  Once again, when it comes to law schools, buyer beware.

In 2010, we blogged about the then-recent decision in Courtney v. Nissan Motor Co., Ltd., in which a Florence County, South Carolina jury awarded $2.375 million to a young girl burned when the Nissan SUV in which she was riding wrecked; the minor’s seat happened to be situated on top of the gas tank.  Our commentary included the following analysis:

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

Not surprisingly perhaps, Nissan appealed.  Recently, the South Carolina Court of Appeals took up the case and issued this opinion affirming the jury’s award.  One of the issues on appeal included whether the circuit court erred in denying Nissan’s post-trial motion for JNOV based on the plaintiff’s failure to provide a feasible alternative design as required by Branham v. Ford Motor Company, 390 S.C. 203, 701 S.E.2d 5 (2010).  (See Abnormal Use’s coverage of that case here).

Importantly, the Court of Appeals was tasked in Courtney to determine if Branham applied retroactively, or prospectively only, since Branham came out after the jury’s award in Courtney.  The Court held that Branham did, in fact, apply retroactively, based on principles long-held in South Carolina jurisprudence:

Turning to the instant case, we recognize that in South Carolina, “[t]he general rule regarding retroactive application of judicial decisions is that decisions creating new substantive rights have prospective effect only, whereas decisions creating new remedies to vindicate existing rights are applied retrospectively.”

The Court of Appeals decided that the Courtney case fell into the latter category, since the risk-utility test had been employed in the products liability context for a long time, if not exclusively.  Thus, having decided that Branham applied in this case, the Court then took up the question whether the plaintiff’s alleged failure to provide an alternative design entitled Nissan to JNOV.  The jury determined that the plaintiff failed to prove a feasible alternative design in a post-verdict interrogatory that, according to the Court of Appeals, should never have been put before the jury in the first place, since “[o]ur supreme court has previously held that ‘[i]t is improper in a law case to submit factual issues to a jury in the form of non-binding ‘advisory interrogatories.'” (internal citations and quotations omitted).  Since the interrogatory was not dispositive of liability, it didn’t really matter what the jury found, one way or the other, in the Court’s estimation.  We see this as the Court saying, in essence, “no harm, no foul.” Finding that the jury’s answer to the interrogatory was dispositive of, well, nothing, the Court affirmed the denial of Nissan’s motion for JNOV.

In this piece from The New York Times entitled “Why the Fuss Over the D.S.M.-5?,” Dr. Sally L. Satel offers these thoughts about the practical application of the somewhat controversial revised psychiatric manual:

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

…

The media will trumpet the release of the new D.S.M., but practicing psychiatrists will largely regard it as a nonevent. Unfortunately, the same cannot be said for other institutions — insurance companies, state and government agencies, and even the courts — which will continue to imbue the D.S.M. with a precision and an authority it does not have.

As you know, we’ve previously written about the DSM and the assistance it can provide in taking depositions of psychological treaters and/or retained testifying experts.  In so doing, we’ve noted that such witnesses typically do not employ a formal multi-axial diagnosis under the auspices of the DSM, meaning that if they concede that the DSM is the standard of the industry and that they did not fully consider the factors set forth therein then there are some potential points to be made at the deposition or during cross examination.  In June of 2012, we wrote:

. . . [M]any of these experts and plaintiff friendly treaters do not actually employ the formal DSM criteria when making these diagnoses in the first place.  Whatever you say about the merits or lack thereof of the DSM-IV, many plaintiffs’ experts and treaters shoot from the hip when making these mental diagnoses.  When they see a patient claiming psychological symptoms following a traumatic incident, they immediately leap to a PTSD diagnosis without employing the specific multi-axial diagnosis process.  Further, when called upon to analyze the factors set forth in Axis IV, which requires an analysis of  – or at the every least, knowledge and consideration of – other environmental or psychosocial factors contributing to the patient’s condition, these providers almost never conduct any independent evaluation.

We see no reason that this analysis will change with the release of the D.S.M.-V.

(Hat tip: Steven Pinker).

According to a report out of The State (SC), a South Carolina man charged with third-degree arson after burning his own home has been found not guilty by reason of insanity.  The state Department of Mental Health recommended the verdict after finding that the man burned his house because he believed witches were in the home.  Judge Ferrell Cothran complied with the Department’s recommendation, sentencing the man to no more than 120 days in a state mental health facility.

Before we chalk this story up as another case of offbeat South Carolina news, let’s pause.  If one believes witches are inhabiting his home, who are we to say he wasn’t justified in burning it down?  After all, fire is the best method of ridding oneself of a witch. If the man’s home was inhabited by vampires, he could have avoided any criminal conduct by installing an extra skylight or lacing the rooms with garlic.  Given the man’s predicament, fire was perfectly acceptable.  Why punish him for it?

We imagine this case would have been bigger legal news had there actually been witches inhabiting the man’s home.  In addition to arson, the man would likely be facing multiple counts of homicide.  Assuming the witches are of the supernatural, broom-flying variety and not practicing Wiccans, the Court would be faced with determining the rights of creatures formerly believed to be mythical. Should witches really be treated as humans in a court of law?  Answering the question in the negative would certainly breed a witch-led civil rights movement worthy of an episode of “True Blood.” This would be the South Carolina news the nation has grown accustomed to seeing.

Unfortunately, this story is limited to questions of capacity and its role in the courtroom.  We trust the Department of Mental Health and its determination that the man was suffering from some psychological illness at the time of the act.  With the commonplace depiction of vampires and zombies on television, we find it unlikely the man would chose witches as the culprit if he was simply making it up.  We understand the mens rea ramifications of an insanity finding and agree with the end result in the criminal context.