We have previously discussed the popular Reptile litigation strategy utilized by the Plaintiff’s bar here and here, and we have even posed the question of whether defense lawyers can co-opt the Reptile strategy. Until recently, there was minimal case law on the Reptile. Motions in limine to exclude the Reptile were left unaddressed, and the courts were otherwise silent as to the Reptile. Recently, however, we have noticed an increasing number of Reptile-related rulings, from which we provide snip-its below:

• The Court denied a motion to exclude Reptile tactics where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, the Court noted that “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned.”  Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015).

• “BSC’s Motion to Preclude “Reptile” Litigation Tactics is DENIED.” Winebarger v. Boston Sci. Corp., No. 3:15CV211-RLV, 2015 WL 5567578, at *10 (W.D.N.C. Sept. 22, 2015).

• Granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy.” Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. September 9, 2015).

• Granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other “safety rules.” Palmer v. Virginia Orthopaedic, P.C.,No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015).

• Motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’ and have agreed to this.” Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015).

• Motion to exclude Reptile denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule.” Scheirman v. Picerno,No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015).

• Denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician “safety rules”, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that jury should “send a message” or otherwise punish Defendant.” Hutson v. Rooney, MD,No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. April 14, 2015).

• Trial court that was admittedly “handicapped because of its unfamiliarity with the Reptile Strategy” denied motion to exclude Reptile tactics. Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. March 15, 2015).
  

• “Defendant’s Motion in Limine to Exclude the ‘Reptile’ should be and hereby is denied.” Upton v. Northwest Arkansas Hospitals, LLC, No. CV-2010-270-4, 2012 WL 12055084 (Ark. Cir. Ct. March 8, 2012).

So, it appears from the non-exhaustive list of Reptile-related opinions that Courts are virtually split on whether to keep out Reptile tactics on a motion in limine. Accordingly, lawyers on both sides of the “v” should be familiar with the strategy, as the Reptile practitioners apparently continue to obtain sizable verdicts:

Reportedly, when Texas plumber Mark Oberholtzer sold his 2005 Ford F-250 Super Cab to a Houston Ford dealership, he never expected that he would subsequently see his truck being used by Islamic militants in Syria’s civil war:

So how did his truck end up in Syria? In October 2013, Oberholtzer took the truck to AutoNation Ford Gulf Freeway in Houston, Texas to trade it in for a 2012 Ford F-250. Oberholtzer alleges that he initially intended to remove the “Mark-1 Plumbing” decal from the truck, but the salesman stopped him on the basis that removing the decals would damage the vehicle. The truck was then allegedly auctioned off in November 2013 and subsequently shipped from Houston to Mersin, Turkey. Approximately a year later, the above photo was tweeted by a contributor to the Long War Journal. Oberholtzer did not expect to see his truck again under those circumstances.

Nor did Oberholtzer expect to experience an apparent exception to the old adage that “any publicity is good publicity.” Apparently, in addition to the company name, the side of the truck bore Oberholtzer’s phone number on the door, including the area code. According to the lawsuit filed by Oberholtzer, on December 15, 2014, the day the plumbing truck photo was tweeted, “Oberholtzers’s cell phone, work phone and office phone had ‘received over 1,000 phone calls from around the nation.’”  According to the complaint:

These phone calls were in large part harassing and contained countless threats of violence, property harm, injury and even death. These phone calls included, but were not limited to, individuals who were: (a) irate and yelling expletives at whomever answered the phone; (b) degrading to whomever answered the phone regarding their stupidity; (c) singing in Arabic for the duration of the phone call or voice message recording; (d) making threats of injury or death against Mark-1’s employees, family, children, and grandchildren in violent, lurid and grossly specific terms; and, (e) directing expletive-laced death threats to whomever answered the phone.

Oberholtzer allegedly shut down his business of Jet Plumbers for a period of time, and he has been visited by federal officials who have supposedly advised him to “protect himself.” When his truck was featured on the final episode of “The Colbert Report,” the harassment and threatening phone calls apparently reached a fever pitch.

Oberholtzer seeks $1,000.000.00 for invasion of privacy and appropriation of name.

If you are technology geeks like us, you may be hoping that Santa’s elves have integrated the construction of 3D printers into their work regimen this holiday season. If so, you may be lucky enough to have limitless design and manufacturing capabilities right at your fingertips. Whether it is a product of your own design or the replication of another, 3D printers afford users the opportunity to become both designer and manufacturer right from your own home. But let the buyer beware. With such power, comes great responsibility.

Before you harness the power of your new 3D printer, it is important to know exactly what a 3D printer is. Like its name implies, 3D printing is the process of “printing” three-dimensional objects. Unlike traditional printing, 3D printing utilizes a process known as additive manufacturing to create three-dimensional objects of almost any shape or geometry. Rather than simply copying a two-dimensional image onto a sheet of paper, the additive process creates an object by laying down thinly sliced, horizontal cross-sections of material until the entire object is created.

Typically, the 3D printing process begins in one of two ways:  (1) the user can create a virtual design using a 3D modeling program, or (2) the user can use a 3D scanner to make a three-dimensional copy of an existing object which is transferred to the 3D modeling program. Thereafter, the 3D modeling program slices the model into thousands of horizontal layers which are uploaded to the 3D printer. The 3D printer then creates the object in successive layers of liquid, powder, paper or sheet metal.  Materials such as plastic, sand, or metal can be used through the 3D print nozzle to create the final object. Simple enough, right?

As amazing as it may sound to play amateur designer/manufacturer, we have to warn you that the law may want to limit your fun. For starters, you may want to brush up on the concept of copyright infringement before you start replicating any and every item in your purview. Additive manufacturing drastically raises the risk of the production of counterfeit products. With your printer, you can instantly discover the “formula” of any product by scanning it with a 3D scanner and recreating it by uploading the digital file. All of this would, of course, be in violation of any copyrights held by the product manufacturer.

If copyright infringement is not enough, you also may want to consider our good friend, product liability. 3D printed objects may lack the quality of traditional products due to the nature of their construction. 3D printed objects are constructed in layers rather than as solid pieces from a mold.   While it is uncertain as to whether the perceived quality deficiency of 3D printed objects equates to a higher likelihood of failure and risk to the user, it is conceivable that this could be the case. Moreover, 3D printers, like any other printer or manufacturing machine, may also make mistakes in transcribing the digital file. Corruption can also occur in the digital file itself and result in the production of a defective product. For the best gift check this site out.

Above all else, the most problematic issue is trying to figure out where you, as at-home manufacturer, fit into the supply chain. Let’s say you decide to sell the objects you produce with your printer. Those objects were generated using a 3D scanner to copy an existing product manufactured by Company X which the you purchased at Store Y.  What happens when one of your customers purchases the 3D printed object from you and is injured due to a design defect in the product? Who is liable? Could you be liable for creating the 3D product? What about the manufacturer of the 3D printer? The manufacturer of the original product? The retailer who sold the original product?  Conceivably, all of the above could face liability under a traditional product liability theory. But it could also be arguable that you, as the at-home manufacturer, should bear the brunt of the liability. Strict liability product law traditionally only applies to designers, manufacturers and suppliers of allegedly defective products. So expect to hear arguments that these entities should not be liable for 3D copies of their products, particularly if the alleged defect arises from the copying process. If successful, you might find yourself wishing you had never gotten that Christmas gift in the first place.

We here at Abnormal Use give you this advice not as a means of keeping you away from 3D printers. In fact, we would love to have one ourselves. Rather, we just advise you to use caution. Resist the urge to replicate everything in your house and design your own products. Preferably those that won’t injure anybody.

As we previously reported, Uber is currently involved in a knock-down-drag-out, multi-billion dollar class action over, among other things, its classification of its drivers as independent contractors as opposed to employees. One of the major developments in the class’s favor was a ruling by the trial court that drivers who had signed contracts which contained an arbitration provision could be included in the class. Reportedly, Uber has moved swiftly to strengthen its arbitration provision going forward: “Uber on Friday sent all its drivers nationwide a new, 21-page legal agreement that bars them from participating in class action lawsuits against the company and instead requires them to enter into arbitration in the case of disputes.”

The class recently attempted to block the new agreement, however.  According to lawyers representing the class, “[b]y distributing these revised agreements this morning, two days after the court’s ruling, Uber was obviously trying to undercut the court’s decision on Wednesday that its arbitration agreement was illegal and unenforceable.” According to representatives of Uber, “the new driver agreement was necessary because on Wednesday U.S. District Judge Edward Chen ruled that part of the agreement Uber drivers had been signing was not enforceable, rendering the entire agreement unenforceable.”

Additionally, “the company said the new agreement is not meant to keep current California drivers from joining the lawsuit.” The new agreement still makes it illegal for Uber to retaliate against any driver that opted out of arbitration.

Apparently, drivers can opt out of the new agreement by sending a letter or email to optout@uber.com and continuing to drive for Uber.

Okay, it’s just a week now until the release of Star Wars: The Force Awakens, and we here at Abnormal Use can’t wait to see it. We’re cautiously optimistic, as we were burned by the awfulness of the prequels in the late 1990’s and early 2000’s. But the film at least appears to have taken a turn in a different direction. Rest assured, though, if the flip is a dud, we’ll comment.

So, today, at the offices of Gallivan, White, & Boyd, P.A.., things will be a bit hectic for one simple reason: Bruce Springsteen tickets go on sale. As popular culture tasks go, few things are more stressful than attempting to purchase concert tickets at the moment that they go on sale. We have a bit of a tradition here at the firm; many of us are Springsteen fans, and we often see the Boss in concert when he performs nearby (whether it be in Greenville, Charlotte, Greensboro, Atlanta, or elsewhere). Fortunately, this morning, the fans at the firm succeeded in their quest to purchase tickets for the upcoming Atlanta show. If you’re there also, be certain to look for us! (Oh, and by the way, be certain to revisit this March 2012 post and this June 2011 post in which we talk about the firm’s experiences at a Springsteen concerts.).

Our legal tweet of the week concerns legal networking and Twitter:

me, networking at a law event: .. .. “so, .. are you on twitter?”

— Venkat B. (@VBalasubramani) December 10, 2015

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. At the end of the year, we usually collect links to those interviews, and so it was recently that we embarked upon that task to prepare this post. Well, as fate would have it, we did not publish any interviews this year!

How about that?

So, for this post today, we’ll direct you to our past compilations of interviews from years past:

Abnormal Interviews of 2010

Abnormal Interviews of 2011

Abnormal Interviews of 2012

Abnormal Interviews of 2013

Abnormal Interviews of 2014

Mind you, we have some in the works for 2016, and we’ll get to those in due time.

For those unfamiliar with Uber, it is essentially an app that connects those needing a ride with Uber-affiliated drivers who are in the area and available to provide a ride. The price of a ride is substantially less than one in a taxi, and thanks to driver background checks, the ability of customers to rate drivers, and the requirement that a vehicle be relatively new and in good condition, the quality of the ride normally exceeds that of a ride in a taxi. Full disclosure: We love Uber and use it religiously.

The popularity of Uber seems to grow exponentially by the day, and there are apparently 150,000 Uber drivers worldwide. One of the benefits to Uber drivers is that they can make their own schedule by signing on to provide rides when they want to work and signing off when they decide to finish their shift. Reportedly, driving for Uber can be lucrative, with hourly wages reaching between $30 and $43 an hour in New York City, for example.

Uber is able to provide this flexibility to its drivers by, among other things, treating them as independent contractors as opposed to regular employees. Recently, however, a class action was filed on behalf of Uber drivers seeking to challenge this practice. According to the informational website created for the class action, the following is the basis for the lawsuit:

Uber drivers have filed a class action lawsuit claiming they have been misclassified as independent contractors and are entitled to be reimbursed for their expenses that Uber should have to pay, like for gas and vehicle maintenance. The lawsuit also challenges Uber’s practice of telling passengers that the gratuity is included and not to tip the drivers, even though you are not getting a tip!!

Unfortunately for Uber, the lawsuit is allegedly valued at $62.5 billion, and a recent ruling by the judge presiding over the case has expanded the class to include “Uber drivers who agreed as part of their contracts to settle disputes in arbitration.” The good news for Uber, though, is that the judge excluded from the class “drivers who work for limo companies—which includes one of the three plaintiffs in the original suit; and individuals who have registered to drive for Uber under a corporate name.”

It will be interesting to see how this one develops. At first glance, this appears to be one of those lawsuits which attempts to criminalize the business model of the defendant. We hope the suit is unsuccessful, as we like the way Uber does business, and we hope that its business continues on.

Hoverboards are a completely needless product. The only cool thing that anyone has done on a hoverboard was this Halloween costume.

Otherwise, the only reason to have a hoverboard is to post photos of your feet on social media while riding it. These arguably less nerdy Segways cost between $150 and $600. Unless you have money to burn, you should not buy this product. However, if you do feel particularly opulent, it may be safer to literally set your legal tender aflame and not buy the board. According to various sources, the hoverboards are catching fire, literally. It is unclear as to the cause of the fires, but there are reports of flames occurring while the hoverboards are charging. Other sources report hoverboards catching fire while being ridden. Timothy Cade reported that he had ridden the board less than 100 feet before the hoverboard locked and caught fire. Cade doused the board with water, but it reignited. Interestingly, Cade requested a refund from the company, Greegear, and he had already ordered a replacement from a different company. We applaud Cade’s optimism.

However, we here at Abnormal Use caution consumers to be wary of the hoverboards. Let’s just them them to the Back To The Future movies, shall we?

For most, the holiday season conjures up lots of good thoughts and memories. For our good friends at the Consumer Product Safety Commission (CPSC), the holidays are a dangerous peril that cannot be navigated without its supervision. According to CPSC statisticians, there were 12 fatalities and an estimated 14,500 injuries during the 2014 holiday season due to undefined “holiday decorations.” As such, the CPSC feels that 2015 is the perfect opportunity to count down the “12 Ways to Celebrate Safely.”  It’s a list that certainly does not end with a partridge in a pear tree.

In typical CPSC fashion, there is nothing new or revolutionary about its safety tips. In fact, we are pretty sure they were developed upon watching Clark Griswold decorate the family manor in National Lampoon’s Christmas Vacation. For example, the CPSC warns us to use caution on ladders and to take care when using sharp, weighted, or breakable decorations. If you are not aware of the properties of fire, the CPSC also reminds us that we should keep lighted candles away from things that can catch fire, like evergreen trees. And, thanks to your tax dollars, we now know that decorations that look like food might be tempting treats for children.

The CPSC probably came up with this impressive list of holiday tips based on thousands of hours of research and an abundance of empirical data. While we here at Abnormal Use don’t have such material at our disposal, we have been through a holiday season or two. As such, we do consider ourselves experts on the issue, and,thus, offer you, our dear readers, these more practical  tips to get you through the holidays:

1.  If you must go all Clark Griswold with your decorations, pay somebody to put them up for you. There are people who earn a living doing it. Use them. Half of the CPSC’s tips would be moot if more people did. We recognize that finances are a little tighter over the holidays, but if you can spend $500 on thousands of lights and $200 on a 20′ inflatable Santa Claus, you should be able to spare a few bucks for some help.

2.  Stay away from the combined-family get together. While physical altercations are a rare occurrence, your mental state is greatly compromised when the immediate family and the in-laws intermingle under one roof. If the combined party is unavoidable, see tip number 3.

3.  Limit alcohol consumption. The perils of alcohol are well-documented. Over-consumption leads directly to the increased likelihood of passive aggressive comments said over the dinner table that you will have to hear about long after the holiday season has passed. If you need alcohol for yourself, find a flask and a spare bedroom.

4.  Don’t go rogue with gift buying.  Listen to your spouse/significant other as he/she drops subtle hints about gift ideas. Ideally, this is a year-long process. We recommend keeping a spare note pad handy and jotting down any item mentioned by your spouse/significant other during the calendar year to use as a reference during the holiday season. (In fact, it comes in handy for birthdays and anniversaries as well).

5.  If you have children and celebrate Christmas, remember that Santa plans months in advance and utilizes the services of elves. Santa is smart enough not to spend his whole night putting toys together. He is tired and knows that injuries (either to himself or the toys) are much more likely during a 3 a.m. assembly than if he put the toys together off-site a week ahead of time.

These tips may or may not be as common sense as those formulated by the CPSC, but at least they didn’t cost any of your tax dollars. We just hope that our tips can help you learn from our past experiences. We would love to hear any tips you might want to share with us!

It’s December, which means we are now only a few weeks from the release of the new Star Wars film. We here at Abnormal Use remain excited about the release of the film. Above, you’ll find the cover of Star Wars #107, published way, way back in 1986. One of us here at the blog remembers buying that issue off the newsstands that year. How about that?

We just released that January heralds the sixth anniversary of the Abnormal Use law blog. That’s a lot of years writing these posts. We can’t believe it, to be honest. Can you?

How many of you visited your local federal district court’s website to investigate new local rule amendments due to the revisions to the Federal Rules of Civil Procedure? By the way, we’re thinking about printing t-shirts which proclaim, “I survived the 2015 Revisions to the Federal Rules of Civil Procedure.”

By the way, Gallivan, White, & Boyd, P.A. has been ranked in the 2016 “Best Law Firms” list by U.S. News & World Report and Best Lawyers regionally in 22 practice areas.

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