Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Ryan Ferrier, creator of the comic book series Tiger Lawyer, in which a tiger establishes a successful career as a courtroom litigator. Take a look at the panels above – which Mr. Ferrier mentions below in response to one of our questions – and you’ll get a good feel for the character and his series. On a number of occasions, we’ve mentioned this fateful character (here, here, here, here, and here.) Last week, Mr. Ferrier was kind enough to submit to an interview with our site. Without further ado, the interview is as follows:

BIOGRAPHY: Ryan Ferrier is a Canadian comic book writer and letterer. He currently writes Tiger Lawyer and The Brothers James for Challenger Comics, a self-publishing comic collective he runs with artist Brian Level. Ryan also letters Robocop: Last Stand for Boom Studios, as well as Skybreaker and Theremin for Monkeybrain comics. He can be found on Twitter at @ryanwriter.

Unless you’ve been living under a rock, you know that this Sunday the final episode of “Breaking Bad” airs on AMC. We’re crestfallen. But we’re excited. We can’t wait.  We love Bob Odenkirk’s portrayal of Saul Goodman, the crooked lawyer who advises anti-hero Walter White. So, today, we pause to reflect upon Breaking Bad: All Bad Things, a digital comic book published earlier this year (which we didn’t know about until we Googled the search term “Breaking Bad Comic Book.”).  Quite frankly, we’re not sure how we’re going to cope without “Breaking Bad,” and we can only guess what is in store for the characters on the series who (currently) remain alive. We assumed there had to be some type of adaptation, and we were right. For more on this issue (and to read it!), please see here and here.

In music news, Roger Waters regrets suing Pink Floyd.

The Legal Geeks pick apart the “spotty” legal record in the television show “Veronica Mars.”

You could buy Kurt Cobain’s childhood home for only $500,000!

We’ve cited an 1884 “dead horse” law in any of our briefings, but not too long ago, the Internal Revenue Service did.  For more, see here.

Let’s say you are a juror in a first degree murder case. Some advice: Don’t look up the state’s expert on Facebook and message him. Seems reasonable enough, right? Well, let’s talk about State v. Smith, — S.W.3d —, No. M2010–01384–SC–R11–CD (Tenn. Sept. 10, 2013). That appeal, as the court set forth, concerned “the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial.”

Sigh.  Here we go again.

During void dire, the attorneys did not ask the prospective jurors if they knew the assistant medical examiner who performed the autopsy and would testify on behalf of the state (even though several or the jurors were employed by the Vanderbilt Medical Center, where the witness had trained). Of course, as is custom, the trial court instructed the seated jurors not to speak with any of the attorneys or witnesses. The trial proceeded as per usual. However, during the jury deliberations, the assistant medical examiner emailed the trial judge the following missive:

I can’t send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

[Juror]: “A-dele!! I thought you did a great job today on the witness stand … I was in the jury … not sure if you recognized me or not!! You really explained things so great!!”

[Medical Examiner]: “I was thinking that was you. There is a risk of a mistrial if that gets out.”

[Juror]: “I know … I didn’t say anything about you … there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

First of all, yikes. The trial court informed the attorneys of the communication, and the jury ultimately returned with a verdict of guilty. The trial court denied a motion for new trial based on its refusal to permit the defense to question the juror about the improper communications. The court of appeals affirmed. Here’s what the Tennessee Supreme Court said:

Even though technology has made it easier for jurors to communicate with third parties and has made these communications more difficult to detect, our pre-internet precedents provide appropriate principles and procedures to address extra-judicial communications, even when they occur on social media websites and applications such as Facebook.

…

When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict. The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between [the medical examiner] and [the juror]. This hearing may very well have necessitated calling both [the juror] and [the medical examiner] to testify under oath about their relationship and the effect of the communication on [the juror’s] ability to serve as a juror. Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether [the juror in question] shared any extraneous information with other jurors.

…

[T]he portion of the trial court’s order that denies Mr. Smith’s motion for a new trial based on [the juror’s] improper extra-judicial communication with [the medical examiner] is vacated. The case is remanded to the trial court to conduct a hearing to determine whether [the juror’s] Facebook communication with [the medical examiner] disqualified him from continuing to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires [the juror’s] disqualification or whether [the juror’s] misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to [the juror’s] improper extra-judicial communication with [the medical examiner], then the trial court shall grant Mr. Smith a new trial.

The facts of this case demonstrate that this technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court. Trial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence. Trial courts should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to access social media websites or applications to discuss, communicate, or research anything about the trial.  In addition, trial courts should inform jurors that their failure to adhere to these prohibitions may result in a mistrial and could expose them to a citation for contempt. Trial courts should deliver these instructions and admonitions on more than one occasion.

(Footnotes omitted).

What the heck was this juror thinking? The trial court instructed the jurors not to communicate with witnesses during the course of the trial. This means that even after hearing that instruction from the court, the juror ventured home from the courthouse, logged into Facebook, looked up the medical examiner’s profile, and send him a direct message on that social media site. Gee whiz.

Back in July, a Texas woman died after being thrown from the 14-story tall “Texas Giant” roller coaster at Six Flags Over Texas. Initial statements did not specify the cause of the woman’s death; however, others on the ride speculated her death was attributed to a safety bar:

[The woman] goes up like this. Then when it drops to come down, that’s when it (the safety bar) released and she just tumbled. . . . They didn’t secure her right. One of the employees from the park — one of the ladies — she asked her to click her more than once, and they were like, `As long you heard it click, you’re OK.’ Everybody else is like, `Click, click, click.’ Hers only clicked once. Hers was the only one that went down once, and she didn’t feel safe, but they let her still get on the ride.

Regardless of the cause, Six Flags closed down the coaster until last weekend while it investigated.

Since the re-opening, the woman’s estate filed a wrongful death lawsuit against the amusement park in Texas state court. In the suit papers, the estate alleges that post-accident inspections revealed that various parts of the ride’s security systems were experiencing “inconsistencies and intermittent failures.” After the woman’s death, Six Flags allegedly had to replace a defective “limit switch” which shows the lap bar is in place. The estate seeks at least $1 million in damages.

Six Flags has apparently never revealed the findings of any internal investigation. The ride is now equipped with new seat belts and redesigned restraint bar pads (implicating subsequent remedial measures concerns, naturally).

Oddly, Six Flags is now also providing a sample seat at the entrance of the ride for people to judge for themselves whether they fit safely. We here at Abnormal Use will withhold any opinions on whether Six Flags should bear any responsibility for the woman’s death. We will say for any future accidents, however, that we would hate to resort to the “plaintiff had the opportunity to try the seat out ahead of time” defense. Hopefully, Six Flags is making this move to ease the fear of future riders. We can only hope.

In a recent Fair Labor Standards Act (FLSA) case in the U.S. District Court for the Southern District of New York, a federal judge ruled in favor of class of strippers exotic dancers and determined that they were actually employees rather than independent contractors.  According to Law360, the facts were these: Former exotic dancers at Manhattan strip club gentlemen’s club Rick’s Cabaret brought a minimum wage class action against club operator Peregrine Enterprises Inc.  Seriously? Exotic dancers at a very popular club in Manhattan are suing over minimum wage?  I suppose no professions are immune from economic downturns. Because of their independent contractor status, the plaintiffs weren’t paid wages while working at Rick’s, but instead, received “performance fees” for “dances” with customers.  However, the named plaintiffs argued that they truly were employees of Rick’s and were therefore entitled to a minimum wage.  U.S. District Judge Paul Engelmayer agreed with the plaintiffs and ruled that they were, in fact, employees of the midtown Manhattan club and that Peregrine was their employer.

In reaching his decision, the Judge applied the five factor “economic realities” test.  Of course, that is a standard test to determine whether agents of a business are employees or contractors.  The test has nothing to do with the economic realities of whether an exotic dancer should be entitled to the minimum wage. While the outcome of the case appears favorable the dancers, the judge wasn’t quite ready to make it rain just yet.  Although he ruled that the dancers were employees, he refused to grant summary judgment because a question remained as to whether they are solely employees of Peregrine or whether they were also employees of Rick’s Cabaret International Inc. and RCI Entertainment (New York) Inc. We’ll have to keep a close eye on the future of this litigation, won’t we?

The case in question is Hart v. Rick’s Cabaret Intern., Inc., — F. Supp. 2d —-, No. 09 Civ. 3043-PAE (S.D.N.Y September 10, ,2013).

Google claims it made an honest mistake in 2010 when its Street View cars were collecting too much data. Instead of just obtaining the bare minimum data needed to map out the locations of Wi-Fi networks, the cars allegedly unintentionally collected “packet” data that contained private user information.  Armed with Google’s admission that it had, at a minimum, made an honest mistake, class-action lawyers pounced, alleging violations of federal anti-wiretapping laws.  According to Reuters, Google’s attempts to have the cases dismissed were recently denied.

Google sought dismissal of the cases on the grounds that the old pre-Internet telephone privacy laws don’t apply. In so doing, Google argued that dismissal was appropriate because data transmitted over a Wi-Fi network is readily accessible to the public. Alternatively, it said the Wi-Fi data could be considered an unencrypted “radio communication,” which means it would not be subject to liability under the wiretapping law.  However, District Judge James Ware disagreed with Google’s contention and held that the cases could move forward.

Google appealed, and the Ninth Circuit ultimately agreed with the district court. The Ninth Circuit found that the data collected by Google didn’t fit into either category; it was neither a “radio communication” nor an “electronic communication”  The ruling also rejected the idea that Wi-Fi data is “readily accessible” because most of the general public lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network.

The case in question is Joffe v. Google, Inc., — F.3d —-, No. 11–17483 (9th Cir. Sept. 10, 2013), which affirmed In re Google Inc. Street View Electronic Communications Litigation, 794 F. Supp. 2d 1067 (N.D. Cal. 2011).

Above, you’ll find the cover of The Best of DC #16, published way, way back in 1981.  “Happy Anniversary” the cake on the cover proclaims, and we share it because of yesterday’s milestone.  In case you missed it, yesterday, we published our 1,000th post (which means this here edition of Friday Links is our 1,001st post.).  We still can’t believe it.  So we will celebrate. Try and stop us. If you’ve been with us for some or all of the duration, remember that you can follow us on Twitter here and on Facebook here.

Okay. Someone is litigating The Chipmunks movies. For real. See here. We would like to see the Word Index on one of the depositions to see how many times the word “Squeakquel” is used.

Whoa! “More than 60 percent of people pretend to have read books they haven’t, according to a recent survey.” We swear we read Finnegan’s Wake. Three times!

This is our new favorite photograph from 1978.  It’s of Muhammad Ali reading the Superman vs. Muhammad Ali comic book. Enjoy.

Check this out: “Top 10 Reasons Not to Bother With a Law Firm App,” written by the North Carolina Bar Association’s own Erik Mazzone.

This may be the most important public service announcement we’ve ever made: “Breaking Bad” will run long this weekend, so you may want to adjust your DVR settings.  For more, see here.

Get this: You are now reading our 1,000th post here at Abnormal Use.  I know, we can’t believe it, either. Posting every business day since January 2010 has led us to this fateful point.

As you may know, we’ve previously paused to reflect on previous milestones: 100 posts back in May of 2010, 500 posts back in November of 2011,  700 posts back in July of 2012, and 750 posts back in October 2012.

But a thousand? That’s just nuts. Action Comics didn’t even make it to 1,000 issues (not that we can compare ourselves to it).

All this nostalgia prompts us to revisit our Abnormal Use mission statement, published on Monday, January 4, 2010, our first day of operations:

We, a group of attorneys working together at Gallivan, White, & Boyd, P.A. in Greenville, South Carolina, have started this blog in an effort to provide thoughtful and thorough commentary on federal and state products liability litigation. In so doing, we will analyze the latest reported opinions, news, and events relating to this area of practice. This is a broad topic, and we expect there to be a wealth of material to cover.

…

. . . [W]e will provide discussion and commentary in this area. To keep matters lively and interesting, we will occasionally pause to bring you lighter fare, including analysis of intriguing developments in general litigation and perhaps even thoughts on the depiction of products liability in popular culture. Whatever the case, we plan to bring you content you cannot find elsewhere.

Since we wrote that three and a half years ago, our firm has expanded and opened two new offices, one in Columbia, South Carolina, the other in Charlotte, North Carolina (where our blog editor now works). We’ve had lawyers join and retire from the blog. We’ve been cited by The New York Times, Scientific American, and NPR, and we’ve been fortunate enough to be named to the ABA Journal‘s Blawg 100 three years in a row. We’ve even managed to score a few interviews with Hollywood producers, actors, and other celebrities.  All the while, we think we’ve held true to our original mission, stated not too long ago (but three and a half years is a lifetime in blogging years).

This milestone simply could not have been reached without the support of our firm and our attorney contributors. We owe this success to them.

Above, by the way, you’ll find the cover of The Spectacular Spider-Man #1000, although that is somewhat misleading, as that series never actually reached that many issues. (They just labeled a special issue as issue 1,000.).

Not too long ago, we directed your attention to a federal case in which a Kris Kristofferson song was at issue. We lamented the fact that the court in question did not see fit to cite the song at issue as per the dictates of Blue Book rule 18.6.1, entitled “Commercial Recordings.” Here’s that rule:

Cite Commercial Recordings by artist and title, providing the name of the recording company and the date of release (if available):

* Cowboy Mouth, Are You With Me? (MCA Records 1996).

* The Beatles, Sgt. Pepper’s Lonely Hearts Club Band (Capitol Records 1990) (1967).

If a particular song or musical work is referred to, cited by analogy to shorter words in a collection according to rule 15.5.1:

* Don Henley, The Boys of Summer, On Building the Perfect Beast (Geffen Records 1984).

Well, that is from the 18^th edition of the Blue Book, which is the one we had handy. The fact that the most recent cited example of an audio recording is from 1996 struck us funny, although we are certainly fans of Cowboy Mouth, a New Orleans rock band made famous for its rock anthem “Jenny Says.” But Sgt. Pepper’s Lonely Hearts Club Band? Building the Perfect Beast? We’re huge Beatles fans, but come on, surely the authors of the Blue Book – comprised of the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review, can cite some more recent records and songs than those? First, the quibble with the Beatles citation. Why cite to a later pressing from 1990 when one can and should simply cite to the original 1967 recording? Further, wouldn’t it have been better to cite Rubber Soul or Revolver?

Next, Don Henley? Sure, we love “The Boys of Summer,” with its classic reference to aging hippies with their “Deadhead stickers on Cadillacs,” but how many law students using the Blue Book will recognize Henley and this classic from 1984? At this point, most law students were born after 1984, anyway. Surely we could throw some Radiohead in there?

So, come on, editors, let’s throw in some updated references! (Full disclosure: We’re still using the 18th edition, so let us know if they’ve already updated these issues in the 19th.).

Proximate cause is one of the more difficult concepts for first year law students.  I myself have fond [terrible] memories [nightmares] of Ms. Palsgraff, and I know most of you do, too.

A new suit against Wal-Mart may stretch that concept to its limit.  As reported by the Associated Press and found on FoxNews.com, a Nebraska man is suing Wal-Mart in Nebraska federal court for $650,000 over his wife’s death. The facts of the case are these.  The plaintiff’s wife purchased several cans of food at Wal-Mart, which were allegedly overloaded by one of the store’s employees into a plastic bag.  On the way to the car, the bag broke, and one of the cans of food sliced the wife’s foot.  The foot later became infected, and she ultimately died as a result of that infection.

The plaintiff alleges that Wal-Mart failed to properly train its employees to double bag heavy groceries.  The plaintiff has also sued the manufacturer and the distributor of the plastic bag on products liability theories. We believe that there will be significant proximate cause hurdles for the plaintiff to overcome, and a jury will likely struggle with this issue in the same way that a first year law student might.  We will continue to monitor the case in Nebraska federal court and track any significant rulings on proximate cause that arise out of the case.