Mmmmmm. Now the cigarette is even closer to my lungs. And I get the added benefit of focusing on lung cancer without worrying about any pesky oral cancer or hairy tongue. Yes, hairy tongue is a real disease, and tobacco use is a contributory factor. (Strangely enough, coffee drinking is also a contributing factor, which is unfortunate for the universe of associates who depend on both coffee and cigarettes to stay awake.) As noted in multiple media, including the New York Times and much of the blogosphere, the FDA is proposing new illustrative warning labels to encourage people to quit smoking. Yum. To see some of the other proposed labels, click here. Here are several different opinions on the impact of this move.

Defense Litigation-oriented opinion: I’ll note that this move is a generation away from paying off for Big Tobacco. It’s hard to imagine that a smoker will succeed in ignoring or not understanding these types of warnings, when the warning is designed to take up 50% of the package area surface. So, certainly, these warnings are favorable to future litigation outcomes for Big Tobacco, which will reduce their anticipated exposure to large jury verdicts. In 20 years, cigarette manufacturers may be more profitable than ever.

Conspiracy-theorist opinion: This is a much easier way to pay lip service to the idea that we want to reduce the overall costs of smoking to the public, than say, banning cigarettes. The federal government doesn’t want to ban cigarettes because according to this website that I know nothing about, the federal government took in $8.5 billion in cigarette taxes in 2009. Way to go progressive tax system! Therefore, these new labels are good for both the government and manufacturers.

College student opinion: Moreover, this is sure to be an effective tool to decrease the existing pool of smokers. Does anyone else think that your typical college student will have a large poster of the above graphic hanging in his room while he smokes, while, at the same time, thinking how smart he is because he appreciates the irony? Meanwhile, because the cost of college will continue to skyrocket, the rest of us will appreciate the irony of the graduate struggling to pay off his student loan debt (because college graduates make all the money) while he looks for money in his budget to buy cigarettes.

Realistic opinion: If you want people to quit smoking, tell them about hairy tongue. Surely, the prospect of hairy tongue is scarier than emphysema.

Defense-litigation perspective resumed: The universe of manufacturing defects in this realm is pretty small. Failure to warn claims will soon be extinct, which will leave design defect claims as the viable strict liability alternative. Surely this labeling program will establish significant comparative negligence. Fraud and civil conspiracy claims will begin to die out as the early generations of smokers die out. What kind of new legal theories will be invented to establish liability over the next generation? This seems like a pretty good time to start a cigarette manufacturing company.

If a picture paints a thousand words, do you still want to eat ground beef? Today’s post serves as a reminder that breaking a tooth while trying to eat the Old 96er does not give rise to a cause of action. Daniel Burns’ case didn’t survive summary judgment, and his appeal to the Appellate Division of the Massachusetts District Court does not begin well: “ Eating a McDonald’s double cheeseburger while driving his truck, the plaintiff, Daniel L. Burns, Jr. (“Burns”), felt a molar break on a hard object, which he did not recover.” Burns v. McDonald’s Corp., No. 10-ADMS-40001, 2010 WL 4226278 (Mass. Ct. App. Oct. 20. 2010). It turns out that Burns should have tried harder to recover the gristle, for without the foreign object he could not be successful as a matter of law.

The court sets up the facts well:

On October 20, 2006, Burns bought a double cheeseburger at a McDonald’s restaurant drive-through window in Raynham. As he drove his pickup truck onto Route 44 while finishing the cheeseburger, Burns had to brake so suddenly because of traffic that he had to restrain with his right hand his 75-pound dog, which had “started to go flying,” and then grab the steering wheel with both hands to keep his truck under control. Indeed, he “needed to push” the cheeseburger into his mouth so he could grab the wheel. While braking, with cars around him swerving, including the car behind him “swerv[ing] out from underneath the truck and into the breakdown lane,” Burns bit onto something and felt pain in the whole right side of his mouth. With his tongue, he felt a round and “hard and bumpy” object about the size of a “small pea.” He spit the contents of his mouth into a napkin. Examining that material later, he found what might have been tooth fragments, but not the offending object, which he never saw or felt, except with his tongue. Burns reported the incident to the restaurant on the day it occurred, and was examined by his dentist at Woodstock dental implants later the same day. Might I suggest to Mr. Burns that, if you were to get in a similar situation again, please, drop the double cheeseburger. Then, reply to this post, and I will wire you the $1.49 to buy a replacement double cheeseburger. If you were to ever get into a car accident with me, and I found out that it was because you were unwilling to relinquish your death grip on your midday artery clog, I would be more than mildly upset. Cramming the sandwich into your gullet is not the decision of a rational actor.

But wait, there’s more: “Almost exactly a month before this incident, on September 19, 2006, a piece of the tooth at issue here simply “had come off” while Burns was eating.” Hmm. Burns cracks his tooth on an object that he didn’t preserve and can’t identify, and the affected tooth suffers from some pre-existing enamel-ady. Sounds Filet-o-fishy. Yes, I actually wrote that.

And as per the dentist he visited at Wichita orthodontic care, it turns out that “Burns had no expectation of either demonstrating the identity of the object on which he allegedly bit, or, it follows, of establishing that object or substance was one that a consumer should not reasonably have expected to find in a cheeseburger.” Summary judgment upheld. What are the lessons to be learned here? 1) Be able to identify the foreign object in your burger. 2) Ensure that it is of such a quality that a consumer would not have expected to find said object in his burger. 3) This opinion would have been better if Burns had ordered the “Big N’ Tasty,” with the Court having to repeat “Big N’ Tasty” throughout the opinion. 4) All of you must immediately head to your local McDonald’s, because the McRib is back for a limited time. No I am not kidding. Try it, and you will love it.

In honor of the Tea Party’s victory/destruction of the country as we know it, we here at Abnormal Use take this opportunity to write about tea. Not just any tea, mind you, but extremely, piping hot tea. Tea so hot, that if you removed the lid and poured it on your body, it would burn you just as if it were brewed in the fires of Hephaestus himself. A tea so destructive and ominous that it has earned the street name of “2012.” Notice that if you remove the “0” from 2012, you find yourself with 212, which is the Fahrenheit temperature at which water boils, so obviously, the imminent collapse of humanity has much to do with boiling hot tea.

Unfortunately, this is 2010, a time in which poor 76-year-old Plaintiff Rachel Moltner simply cannot subsidize her own negligence with the profits of the mega-corporation Starbucks. In yet another hot beverage case, we see a purportedly evil-beverage serving corporation forcing consumers to burn themselves and then legally smiting the innocent consumer via summary judgment, surely while the CEO lights his cigar with $100 bills and guffaws mercilessly.

On Tuesday of this week, the Second Circuit affirmed a grant of summary judgment to Starbucks against Moltner in Moltner v. Starbucks Coffee Co., No. 09-4943-cv, 2010 WL 4291299 (2d Cir. Nov. 2, 2010) [PDF]. After several months of ordering a weekly regular sized hot tea, Ms. Moltner upgraded to the “Venti,” a 20-oz behemoth of a beverage. The tea was double-cupped and sleeved, the purpose of which, was, of course, to protect the consumer from burning her hand on the very hot elixir. Moltner was handed the beverage, lid in place. She then ambled over to a table to pour some sugar into her tea. As she removed the lid, she poured some tea into her shoe, causing her burns necessitating skin grafts, as well as some secondary injuries related to her hospital stay, including bed sores, a fractured sacrum, and some herniated discs. (As an aside, Ms. Moltner’s “coffee name” was Plaintiff Oldy McOlderton.)

Per the district court, however, at Moltner v. Starbucks Coffee Co., No. 08 Civ 9257, 2009 WL 3573190 (S.D.N.Y. Oct. 23, 2009), plaintiff’s counsel tried to spin this double cupping: “Plaintiff alleges that the double cup constitutes a dangerous defect . . . .” While a double cup may be inadvisable or ineffective in other walks of life, here, in fact, it was no defect. Furthermore, expert suppositions about grip positioning or finger size were likewise dismissed. (We’d like to see the CV of the tea cup grip positioning expert.). Plaintiff also tried to make some hay with an apparent directive from Starbucks to its employees that they not double cup because it changes the cup’s center of gravity. Seriously. I have never thought about ensuring that my beverages have a low center of gravity. Unfortunately for her, Ms. Moltner’s quest for not more than $3 million dollars ended in a sweet and frothy summary judgment. Pour some sugar in that.

Lest you think me heartless, I do empathize with Ms. Moltner. I don’t wish injury upon anyone, but spilling a hot beverage on yourself is not grounds for a cause of action. It wasn’t in 1992, and it isn’t 18 years later. It’s just carelessness or bad luck or the whims and caprices of the fates. Please just accept some responsibility and be careful when you double cup.

You can read the rest of the summary judgment order yourself. I will note that valuable resources of the federal judiciary were occupied hearing the motions and writing the 41 page order in this case. Moreover, there was a fair amount of discovery taken in this case, with the plaintiff deposed not once but twice. Perhaps the airline’s attorney could not believe what he heard the first time. There was also some talk of Luna amending her complaint to add sasquatch fur as a second foreign object, and the airline was forced to conduct discovery on the existence of Bigfoot.

I now fear that someday I may be writing on discovery relating to sasquatch. After all, if Luna had alleged that she had sasquatch fur in her food (and had retained the fur), wouldn’t that be a cognizable claim? My hope is that the sasquatch case is filed in South Carolina, and I get to be a part of that discovery.

Today, we examine the question whether anyone in the United States is unaware that coffee is served hot enough to burn skin. While any reasonable person is aware that coffee is, in fact, hot, Gerald Colbert thought it was 1992 again and sued Sonic Restaurants because it “failed to warn him and other customers of hot coffee, failed to keep its coffee at a proper temperature and failed to make sure its coffee cups were in a safe condition.” Colbert alleged that he received second degree burns through “his blue jeans in his groin area, stomach/abdomen area and thigh.” Thankfully, Judge Stagg, in granting summary judgment against Colbert in Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010) did not have to discuss any damages discovery. While we occasionally poke fun at litigiousness, the following are some things that struck me about this case:

1. This case was filed and state court and removed. Therefore, I assume that Colbert was forced to concede that he suffered over $75000 damage to his “groin area.” I also assume that the parties thought that use of the phrase “groin area” was appropriate. Use of the phrase “groin area” only makes this suit seem more comical. Can’t we all agree that a groin is a groin without appending the word “area?” We get it.

2. Only in law do we have to assess whether someone is a “sophisticated user” of hot coffee:

The summary judgment evidence in this case clearly classifies Colbert as a sophisticated user of Sonic’s coffee. Colbert testified during his deposition that he is a regular coffee consumer and that he has purchased coffee from Sonic numerous times prior to the incident. . . . In fact, Colbert admitted during his deposition that he has previously spilled hot coffee on himself.

Think about what went in to getting this admission. Case was filed, answered, written discovery served, discovery reviewed, deposition prep on both sides, and Colbert drove himself to the attorney’s office, probably with coffee in hand, and knew that he had no cogent, helpful answer for when he would be asked the question whether he had spilled coffee on himself.

3. In response to the summary judgment motion, Colbert came forward with his own affidavit, which apparently struck his lawyer as the best (or cheapest) way to respond. Colbert then turns into part scientist, part logician to come up with this (paraphrased) Aristotelian formulation of a syllogism: Premise 1. Water boils and turns to steam at 212 degrees Fahrenheit. Premise 2. I observed steam coming from my coffee. Conclusion – My coffee was 212 degrees Fahrenheit. Uh, no. I’ve never had a cup of coffee at a roiling boil. You haven’t either.

It’s not 1992. I think everyone is aware that coffee is hot everywhere and not just at McDonald’s. Colbert imposed systemic costs on the courts, as well as all of us who enjoy the wonderful fare offered by Sonic. It’s hard to know whether this is an economically efficient result, since we can’t really know if this case will deter any other sophisticated users from coffee litigation, but in the short run, lots of money was spent defending a meritless claim. Congratulations, Sonic, in choosing justice over economics.

You may have seen some of the more shameless plugs on other legal blogs requesting your vote for the annual best legal blog contest. If you’re drawing a blank, allow me to educate you on this matter. Very recently, The ABA Journal requested input from the law blog, or blawg, reading public to generate its annual list of top legal blogs. (As one who nominates a blog to the 100 best legal blogs list, you are referred to by the ABA as “blawg amici.”). You can find the nomination form and related information here. Obviously, we here at Abnormal Use take our blogging quite seriously, and we would never condescend to overtly request that you tell the fair editors at The ABA Journal how awesome we are. In fact, we specifically request that, if you were so moved as to submit Abnormal Use to The ABA Journal, that you not say that we are simply a “great blog.”

That’s just our way here at this site, and for better or ill, we can be nothing but ourselves.

Apparently, and unfortunately, NBC is determined to reboot its fateful 1980s series, “Knight Rider,” in the form of a new legal drama. You heard me right. Today, we here at the legal blog Abnormal Use review NBC’s new television show“Outlaw,” a heavy handed new lawyer show which premiered last night. As a series, it takes the aforementioned “Knight Rider” formula (unfortunately the 2008 version) and attempts to apply it to a would-be legal series. Sigh.

Before I lose the readership in this comparison, allow me some introduction and factual development. “Outlaw” is one of NBC’s attempts to return to scripted programming after “The Jay Leno Show” debacle. I was a bit skeptical of the premise when I read that Jimmy Smits portrays “former Supreme Court Justice Cyrus Garza, a playboy and a gambler who always adhered to a strict interpretation of the law until he realized the system he believed in was flawed.” But there’s always hope, however naive, that NBC will come up with a decent legal drama before the “Law and Order’ concept becomes too worn.

Here’s the plot summary: Cyrus Garza is “arguably the most conservative justice” on the Supreme Court. Cyrus has a problem because he feels like he has let down his dear old dad, a recently deceased lawyer-activist who championed liberal causes. After a one night stand with an twenty-something ACLU member, Cyrus realizes that conservatism is innately wrong, and before resigning his appointment, he grants a new trial to a convicted cop killer. Cyrus joins a law firm (at which Jan from “The Office” is the managing partner) and assembles a team who will fly all over the country righting wrongs perpetrated by our justice system. Cyrus then becomes the head lawyer on the defense team of the cop killer. His team discovers evidence not presented at trial establishing that the dead cop’s husband actually killed the cop. I will affirm that I in no way have embellished the plot. If this were not enough, Cyrus owes his bookie $250,000 and will have to pay at some point during the next three months.

Here’s the deal. As you can tell from my summary, the premise of the show is absurd. But as we’ve noted before, real life law practice can be pretty boring, so I’m not asking the show to be real. Legal Knight Rider though, is a bit much. The dialogue beats you over the head with the idea that Cyrus is sick of preserving a justice system at the expense of the innocent. He actually says things like “I’m hurting the people that I should be protecting.” By the end of the show, after Cyrus and company free the innocent man, it’s clear that “one man can make a difference.” The absurdity of the premise will likely mean the end of the show. Cyrus had his epiphany in episode one. He is now a crusader, a man of great moral fiber. What is left to do now? There’s no internal conflict in the protagonist. Trying to give Cyrus instant depth works against the longevity of Outlaw. And it promotes the same hackneyed legal plots. Moreover, there is no sense that there will ever be any real characters other than Cyrus. He has three lawyers and a private investigator that work under him, but the characters all seem a bit fungible. It’s possible they were cardboard cutouts, or to be less harsh, merely extensions of Cyrus himself, since even this champion of the people can’t be in two places at once or carry on an extended dialogue with himself. I would not be surprised if, at some point in the future, we discover that Cyrus has an evil twin, allowing Cyrus to carry on conversations with evil Cyrus. This would ensure that we all know that Jimmy Smits is the main character on the show.

From a legal standpoint, do you think there is anything questionable about the judge who essentially overturns a murder verdict becoming a lawyer for the criminal defendant? The show also asserts a stale take on jurisprudence, namely, that the court is not really an actor in our legal system. You kind of get the feeling that, without Cyrus preaching about the real meaning of justice, the judiciary would sit around for the next few years, throwing their hands in the air, not knowing what to do about all the terribly conservative legal precedent, and let a lot of innocent prisoners be executed. Thankfully, there is the Outlaw, who I presume to be Cyrus. Now judges everywhere will be able to take some steps to move our system forward. Yet again, one man can make a difference. The passivity attributed to the judiciary is too much. It takes the form of powerlessness rather than stare decisis. I don’t know anyone who thinks that the judiciary is powerless. But apparently Cyrus does, because after all, he quit his lifetime appointment on the world’s most powerful court to dispense some real justice.

That being said, this show isn’t nearly as bad as the freshman lawyer drama, “The Deep End.” To be reminded of why that show lasted 5 episodes or so, please revisit our initial review of that show here. But “Outlaw” isn’t really that good either. It’s obvious that NBC is depending on Smits‘ star power to carry the show. In fact Smits‘ bio on the cast page recites the phrase “critically acclaimed” about Smits or his prior work six times. Notice I said prior work. Will Smits enjoy the same success as had by Joe Mantegna, who spurred CBS’s 2002 Supreme Court drama, “First Monday” to an amazing 4-month, 13-episode run? Only time will tell. Meanwhile, I hope the writer’s will immediately begin to add something to this so-far bland show.

The pilot episode of Outlaw aired at 10 p.m. EDT on NBC. The episode was written by John Eisendrath and directed by Terry George. The cast includes Jimmy Smits (Cyrus Garza), David Ramsay (Al Druzinsky), Ellen Woglam (Mereta Stockman), Carly Pope (Lucinda Pearl), and Jesse Bradford (Eddie Franks).