Every so often, the blog gods shine down upon their minions and grant them a post that, almost literally, writes itself.  This is one of those posts.  While perusing Yahoo! News the other day, I ran across this story.  Go ahead.  Click on the link.  You’ll be glad you did.

Was I right?  A copy of the full opinion can be found here [PDF].  It’s well worth a full reading.

I’ve often thought that being a judge might sometimes get a little dry, and that writing legal opinions (or, rather, reviewing the opinions that my clerk wrote) might become mundane.  But every once in a while, a case lends itself to a bit of creative writing.

This ruling is simply hilarious.

I was also a bit curious about its author, U.S. District Judge Fred Biery, so I looked him up.  According to his official bio on the U.S. District Court for the Western District of Texas website, Judge Biery was appointed by President Clinton [withhold additional commentary here] and he enjoys basketball and gardening.  His Wikipedia page already has a citation to this fun ruling.

Law is serious business.  No one denies that.  Further, it is possible that the town of San Antonio and the strip club at issue do not find the judge’s lighthearted opinion at all amusing.  Perhaps they feel that their litigation is not being taken as seriously as they believe it should.  But for the rest of us, this opinion proves that lawyers–and judges–are not sticks-in-the-mud all the time.  And that’s a good thing!

Soccer fans are loud.  Really loud.  A rowdy bunch in general, fanatics of teams all over the world have been known to engage in all sorts of bad-boy behavior.  They throw things from the stands, things like flares and burning mopeds that could seriously hurt someone on the field or down below.  They murder fans of other teams, just because.  And they engage in riots that end up with people dead, and others sentenced to die.  Heck, there’s even a Wikipedia page devoted to “football hooliganism.”

My point is, soccer fans are not, as a rule, shrinking violets.

And yet, there was one thing that caused soccer fans all over the world to beg for mercy.  To lunge for their remotes in a frantic search for the mute button or, for those [un]lucky enough to be at games during the South Africa World Cup in 2010 in person, to wish for earmuffs.

The Vuvuzela.

Looks harmless enough, but these things are brutal.  They’re loud.  They make your ears bleed.  And, thank the heavens, they were eventually banned by UEFA, the Union of European Football Associations.

Not to be outdone, Brazil has apparently come up with its answer to the Vuvuzela, another [slightly less] annoying noisemaker which Brazil claims to be part of its cultural heritage.  They are called Caxirolas.  Please don’t ask me to pronounce it.  Time Magazine recently published an article about them, which is how we learned about them.  This guy was nice enough to model them:

Designed to sound like rain, we think that the sound, once magnified by all of the fans, will be more like the sound of millions of cicadas swarming the stadium than a calm afternoon shower.

But then, we’re talking about soccer fans.  They never opt for “calm.”

Here at Abnormal Use, we’ve been involved in many cases in which the plaintiff alleges intentional or negligent infliction of emotional distress as a cause of action.  Cynical defense attorneys that we are, we are often skeptical–or even dismissive–of these damages, because they are so subjective and easily exaggerated.  Recently, we came across some stories about a lawsuit in which a fan sued Derrick Rose for emotional distress.  Yes, you read right.  A fan is suing a player on a pro sports team because he doesn’t like what was going on with the team and one player in particular.

Some background.  Derrick Rose is one of the stars–or the star–of the NBA’s Chicago Bulls.  Last year, during the 2012 playoffs, Rose blew out the ACL in his knee, requiring surgery and some time off from playing to heal, rehab, and recover.  There has been some scuttlebutt recently about the fact that Rose, who has been cleared by doctors to return to the Bulls since March 9, hasn’t taken the floor.  Moreover, it doesn’t look like he’s going to play for the remainder of the season, even though the Bulls could definitely use him.

All of this must be a little upsetting to Bulls fans.  Fans are probably frustrated, maybe even a tad bit angry at Rose.  But only one has decided that Rose’s failure to return has caused him such distress and emotional turmoil that he wants Rose to be held–yep, you guessed it–legally liable for that distress.

Meet Matthew Thompson, a 25-year-old Bulls fan from Peoria, Illinois.  He’s apparently been so upset by Rose’s absence that he’s put on a little weight.  So, as reported by the Houston Chronicle (along with several other news outlets), he’s suing Derrick Rose.  Because that’s what we do in America!

Common sense, if not legal training, shows that this lawsuit is just ludicrous.  But it’s also a good time to review the law of negligently inflicted emotional distress claims (since, we assume, Rose did not intentionally blow out his own knee just to hurt Thompson’s feelings).  Let’s assume the suit was brought in South Carolina.  The South Carolina Supreme Court considered the limits of recovery for bystander emotional distress in Kinard v. Augusta Sash & Door Co., 286 S.C 579, 336 S.E.2d 465 (1985).  The Kinard Court held that a bystander may recover for his or her emotional injuries under the following conditions:

(a) the negligence of the defendant must cause death or serious physical injury to another;
(b) the plaintiff bystander must be in close proximity to the accident;
(c) the plaintiff and the victim must be closely related;
(d) the plaintiff must contemporaneously perceive the accident; and
(e) the emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony.

Id. at 582-583.  Of course, we don’t know all the facts.  Thompson may have been sitting in the front row when Rose blew out his knee.  Thompson and Rose may be closely related.  We seriously doubt, however, that either of these conditions would be met by Thompson’s case.  We are confident, however, that Thompson could find some doctor somewhere to attribute the cause of his weight gain to the disappointment Thompson feels at the Bulls’ predicament.  In any case, we are curious to see how this case proceeds, if it proceeds at all.

All we know is that if this case survives, or if Thompson is paid one penny by Rose to settle the lawsuit, it could potentially open the floodgates.  This will be especially true in Chicago, where long-suffering Cubs fans will retain counsel faster than their team can race to the bottom of the NL Central.

A few years ago, we wrote about a case involving an expert who didn’t conduct testing prior to rendering his opinions, thus ensuring that he could actually get the results he wanted to support his “findings.”  Today, we feature another episode in the sitcom we’ll call ”The Expert Who Wasn’t.” In Ho v. Michelin North America, Inc., No. 11-3334 (10th Cir. March 29, 2013), the plaintiff, Melinda Ho, appealed a district court order excluding her proposed tire expert and granting summary judgment to Michelin.  In 2007, Ms. Ho was injured in car accident when a car driven by Linda Lange suffered a left front tire belt and thread detachment, forcing the car into the oncoming lane of traffic and injuring Ho.  She brought a products liability case against Michelin, alleging defective design, defective manufacture, failure to warn, breach of warranty, and negligence. Thus began a comedy of errors, at least as far as the plaintiff’s experts were concerned.

Ho identified two experts to testify about the cause of the tire failure.  The first, Patrick Cassidy, a Ph.D. chemist, testified that the age of the tire was a major issue, and that age had “an effect” in the cause of the tire failure.  However, he testified that there were a number of potential causes of the failure, and that he would not testify that the age of the tire caused it to fail.

Internal monologue by the plaintiff’s attorney during deposition:  “Then WHY am I paying you?”

Cassidy also testified he had no scientific evidence that the tire was defectively manufactured and, although he identified a potential design defect, he could not testifiy that it caused the failure.  He admitted he was not a warnings expert and could not testify about that issue.  Also, not helpful to the case of the plaintiff’s attorney.

Enter expert number 2, William Woehrle.  After a Daubert hearing, was also excluded.  The Court, helpful as always, reminded us about the four, non-exclusive Daubert factors used in testing an expert’s admissibility in federal court:

1.  Whether the opinion at issue is susceptible to testing and has been subject to such testing;

2.  Whether the opinion has been subjected to peer review;

3.  Whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and

4.  Whether the theory has been accepted in the scientific community.

Here was the problem with Woehrle: he rested his opinion essentially solely on his credentials working in the tire industry for 40 years and 30 years of teaching accident investigation.  He had no experience designing tires, and the testing he did was minimal at best, and it was not the most accurate testing available for the product.  Furthermore, Woehrle’s methodology and general claims and opinions were “contrary to the generally accepted engineering literature.”  Such obstacles could not be overcome.

In the end, both of Ms. Ho’s experts were excluded by the trial court, a decision that the Tenth Circuit upheld.  Moreover, without expert testimony, the plaintiff’s case failed, and summary judgment for Michelin was affirmed.

While killing time recently, I ran across this rant posted on the Opinion page of CNN.com, written by Dean Obeidallah, who is apparently “a political comedian,” and a former attorney, among other things.  Well, we don’t think he was trying to be funny in this column.

In fact, I take issue with his tone.

Obeidallah’s basic point is that—wait for it–America is too litigious.  Certainly not new material.  He uses a recently-filed lawsuit against the TV doctor personality “Dr. Oz” as the latest evidence for this theory.  Apparently, a diabetic man is suing Dr. Oz because the remedy Dr. Oz suggested caused the man to suffer burns on his feet.  Of course, as Obeidallah notes, the gentleman seems to have ignored some of the basic instructions for the remedy.  You can read more about the lawsuit here.  Obeidallah then continues his column by providing a list of other “ludicrous” lawsuits (although we noticed that he does not mention the infamous Stella Liebeck McDonald’s Hot Coffee case).

Obeidallah’s verdict on the reasons for our litigious society?  A perfunctory “Blame the lawyers” slogan, especially plaintiffs’ personal injury lawyers, who hope for a quick settlement “so that they can do as little work as possible before seeing their own payday,” and “taking a questionable case that will reap you some media coverage and money.”

Now, we here at Abnormal Use have worked with–and against–a number of hard-working, honorable plaintiffs’ personal injury lawyers who are not just good, but great, attorneys.  We’ve also worked with some who didn’t quite hit the mark.

But we’ve met and worked with just as many great and not-so-great lawyers on our own side of the bar.

Despite his anger, Obeidallah does make one point that we don’t see often in such analysis.  There are a “growing number of lawyers out there struggling to make ends meet,” he says.  He might be on to something.  According to a recent Wall Street Journal column, there are approximately 21,800 new legal jobs each year for the approximately 44,000 law school graduates.  Those numbers don’t crunch.  Hungry lawyers, Obeidallah suggests, might be more willing to take a questionable case simply to keep their practices afloat.

There is, of course, a larger conversation in the legal community these days—about the role of law schools, the quality of legal education, and the available jobs for graduates and seasoned lawyers alike.  We will continue to monitor these issues, comment upon them, and invite your input, as well.  We hope that the tone of these discussions remain civils, and don’t always have to be accompanied by column headings as abrasive as Obeidallah’s “Dr. Oz suit is another reason people hate lawyers.”

We think these heavy subjects deserve a more nuanced approach than that.

As if being a Supreme Court Justice wasn’t reason enough, Justices Ginsburg and Kagan have just given us a new reason to admire them.  In a Wall Street Journal article published on March 19, 2013, these two judicial heavy-hitters show that they can bring it in the gym as well.

The article focuses primarily on personal trainer Bryant Johnson, who counts not only Justices Ginsburg and Kagan as clients, but U.S. District Judges Thomas F. Hogan, Ellen S. Huvelle, Emmet G. Sullivan and Gladys Kessler.  His is a great story of American entrepreneurship.  By day, Johnson is a records manager in federal court’s clerk’s office.  A veteran and fitness guru, he began training a friend from the clerk’s office and built his resume of VIPs from there.  In the evening, he drives over to SCOTUS and works out with some of the greatest legal minds of the day.

Justice Kagan boxes with Johnson for her workouts.  Justice Ginsburg likes to work on her pushups:

“When I started, I looked like a survivor of Auschwitz,” Ginsburg said in an interview. “Now I’m up to 20 push-ups.”

This is a fun article, and it makes an important point about judges being real people who, like us, get haircuts, go to the grocery store, and gain weight if they sit behind their desks too long with no exercise.  As they move through their own lives, they interact with “ordinary” people.  I have actually lived this story on a much smaller scale–during my first year in practice, I was introduced by a colleague to a state circuit judge as we sweated side-by-side on Stairmasters.  I knew who he was, of course, but he didn’t know me.  We decided not to shake hands that day.  I have also run into another judge in a local CVS, who gave me a wink after checking out my holey jeans and arms full of baby diapers and a pint of ice cream.

Even though these moments are awkward, they have the wonderful and important effect of bringing the Bar closer. They make my city and state an even better place to practice law.  These moments also illustrate to all that the judges are part of the community.  These are important messages in today’s society when our profession doesn’t always conujure up the Atticus Finch vision of lawyers.

Last weekend, I spent nearly 10 hours in the car to travel to and from Greenville, South Carolina to Savannah, Georgia.  My father turns 65 in a few days, so my husband and I packed up our two boys, ages 3 and 11 months, and loaded the family truckster for a weekend of sugar and celebration. Ten hours of car riding in three days is a lot for little guys to handle, and they become restless and bored along the way.  So, about halfway through each leg of the trip, I found myself crawling between two VERY large carseats in the back to help feed/entertain the boys.  Along the way, I started to think about the products that I already possessed that made these tasks easier, and the ones that I wish had already been invented.  I thought I’d share that list with you.

The “Haves”

1.  The in-car DVD system. Before I actually had children, I vowed never to own a car that had a DVD system for the back seat.  When I was a kid, I had to entertain myself with books, crayons, and generally annoying my brother.  Why couldn’t my kids make do with the same?  Well, when we bought the family truckster, the DVD system came standard, so I didn’t have a choice.  And, in the past three years, I have learned a very valuable lesson.  While I may not be able to see anything on the screen from the front seat, the DVD system has NOTHING to do with the kids.  It’s for the PARENTS!  We still have restrictions on how much of the trip can be “TV time,” but I found myself very thankful for the DVD yesterday when we were stuck in traffic.

2.  Child window locks. The 3-year old has a mischievous streak.  Enough said.

3.  Baby mirror. When angled correctly, a mirror hanging from the back seat can allow the baby and the driver to see each other, or the baby to see himself.  Hours (okay, at least minutes) of fun, especially if you put a hat on the baby.

The Wish List

1.  Automated “peek a boo” parent. My 11 month old is still sitting backwards, and he isn’t very interested in DVDs yet anyway, so he got very bored very quickly staring at the backseat.  As a result, I spent a lot of my time hiding behind my hands/his hands/blankets/stuffed animals and playing peek-a-boo with him.  It would be nice to have something that could do that for me, at least for a little bit.  Because while I got a bit tired of that game, he never did.  Don’t get me wrong – I loved playing with him for a little while, but by hour three, I was exhausted!

2.  Extended trailer hitch changing table (with optional heater). Let’s face it.  No parent wants to change his or her child in a rest area or fast food restaurant bathroom, even with those fold-out Koala tables.  Gross.  But with two kids and two adults, plus all of their stuff, there wasn’t any flat place in the car to change the baby, either.  Plus, it was early March, and quite chilly–no person, baby or not, wants his bare rear end exposed to 40 degree weather!  My solution?  Some sort of table that extends from the car, flat and just big enough on which to change a baby.  It would appear the same way as, say, automatic running boards that appear from the bottom of the car when it is turned off.  Key feature?  A heating element for those bare bottoms.

3.  New York City cab-style impact-resistent glass divider between front and back seats. When you get two boys together, there is a reasonable chance of something flying from the backseat to the front seat, square into the back of Dad’s head, or rolling under Mom’s feet as she tries to pass that 18-wheeler.  A nice optional feature would be soundproofing for meltdowns/temper tantrums that just cannot be quelled.

4.  Teleporter. Beam me up, Scotty!  A teleporter would really obviate the need for all of this other stuff.  Simply load up the car, punch in a destination Delorean-style (yes, I am aware I am mixing pop culture references, thank you), and race toward the downed power line.  Not only would this allow us to miss all the drama of the 10-hour trip, but it would have allowed us to spend more time with the birthday boy, my dad.

Yet, this wish item falls not at the top of my list, but the bottom.  Some of my fondest memories, believe it or not, were on family trips when my brother and I were hostages in the back seat, forced to find our own fun and (gasp!) talk to my parents.  In fact, we all reminisced about some of those trips this past weekend, laughing so hard we couldn’t breathe.  I think they made my brother and I closer to our parents, and to each other.  I hope that these trips do the same for my sons.  Nevertheless, if you take away my DVD player, I may have to hurt you.

Ah, what’s a little alcohol without a little insult?  Our friends at Overlawyered recently reported on one brand beer that is changing its name due to today’s politically-correct climate.  “Albino Rhino,” a craft beer brewed by Earls Restaurants in Canada, will change its name after 25 years.  The new name: just “Rhino.” A woman who suffers from albinism had filed an official complaint with the BC Human Rights Tribunal, prompting the brewer to opt for the name change. In response to this news, we here at Abnormal Use started looking at some other beer brands that have resulted in litigation.  To our delight, we found a lot!  Booze, apparently, often prompts suits.

Last year, the Michigan Liquor Control Commission banned Flying Dog’s Raging Bitch beer.  Flying Dog filed a First Amendment lawsuit as reported by Beerpulse.com, which bills itself as the “World’s #1 daily beer news website.”  (Sidebar:  now there’s a website we need to visit more often!  Why has no one told us about this before? Clearly, we have been reading too many legal websites).  Don’t forget about Bad Frog Beer, whose label prompted one state alcohol authority to ban it (as it featured a frog shooting the bird at the drinker).

There are, of course, the trademark infringement suits, which beg mentioning because of some of the words these breweries are trying to protect!  Here’s a story about two companies fighting over the use of the word “idiot!”  The most famous case, of course, involved that little spat between Budweiser and Budvar.  Read about it here, and take our word for it–the American beer is inferior to its Czech counterpart.  No comparison.

Of course, if we were to talk about beer and lawsuits, we can’t go without mentioning Collaboration Not Litigation Ale, brewed by Avery Brewery Company.  I can think of mediation or two that might have fared better with a little beer, and some that actually have.

If you’re just looking for offensive beer names, there’s a website for that.  Check out this page, which has a link to more names on this page, too.  WARNING:  Some of them are actually pretty awful, and probably warrant a Rated X label.  You’ve been warned!

From time to time, we here at Abnormal Use chance across quirky products (or quirky warnings) and offer our comments.  Well, we’ve seen some doozies, but this one may take the cake. The Retroist found a 1972 advertisement a Flame Gun!  Yes, you read that right.  The full post can be found here, but we simply can’t resist providing the actual image of the flame gun itself:

Now this thing looks useful!  After all, it’s “the gun of 1000-and-1 uses!”  Perfect for, um, well, I guess when your gas stove won’t light, this could do the trick! Apparently, it’s so easy to use that “Even your wife can use it.”  Wasn’t 1972 a little late for those kinds of statements? Actually, the helpful ad suggests a few other uses, including destroying insects, anthills, and old wasp nests from a “safe distance.”  But the real kicker, in our opinion, is that this unit is advertised as being of use BOTH indoors and outdoors.  Are we the only ones who think this is a BAD IDEA? The copyright on the bottom of the helpful ad shows that the project is registered to Bevis Industries, which apparently no longer exists.  We can’t imagine why!

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.