Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges

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When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.

Chick-Fil-A And The Case of the Heart Attack Causing Cherry

With a fact pattern straight from a torts textbook, a Texas woman has sued Chick-Fil-A and its cherry supplier, Dell’s Maraschino Cherries Co., Inc. after the cherry on her milkshake allegedly caused her to have a heart attack.  According to a report from the New York Daily News, Cyndi Scruggs purchased a milkshake topped with whip cream and a maraschino cherry from a Chick-Fil-A restaurant in Plano, Texas.  She bit into the cherry and discovered that it allegedly “had not been properly de-pitted.”  The improperly de-pitted cherry caused her to fracture two teeth below the gum line.  To make matters worse, Scruggs developed a gum infection and sepsis which allegedly caused her heart attack.  She is seeking between $200,000 and $1 million in damages.

This is case is certainly a test in foreseeability and proximate causation.  Assuming that Scruggs did bite into a faulty cherry and that her damages allegations are valid, it seems very tenuous on the surface that a cherry could lead to a heart attack.  Nonetheless, if Scruggs can prove an unbroken chain between the cherry and the attack then she may be able to recover, as crazy as it may be.

Damages aside, we here at Abnormal Use have to question why anyone would eat the milkshake cherry in the first place.  We always thought the cherry was more visually appealing than edible. In our opinion, cherries are a Jolly Rancher flavored and should never actually be consumed.  Of course, there is no prohibition on the consumption of such things.  But shouldn’t we assume the risk of injury for biting into something that has no valid purpose on the milkshake in the first place?

The Dark Knight Won’t Share His Likeness With European Soccer Team

According to a report from Sports Illustrated, La Liga football club Valencia will abandon its new logo following an objection from DC Comics.  Last week, Valencia filed a trademark application for its re-designed bat logo.  DC Comics filed an objection to the application, claiming that the logo looked too similar to the crest of the Dark Knight himself.

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As you can see, the two logos are similar in that they are both black in color and resemble a bat.  Beyond that, we here at Abnormal Use fail to see how the proposed logo will cause much confusion.  We seriously doubt the Valencia logo, with its soft lines and rounded ears, would strike much fear in Gotham’s criminals.  Certainly, even though the most amateur Batman fan could easily point out the differences.

An interesting component to this trademark suit is trying to decipher just which Batman logo Valencia is allegedly infringing. The Batman symbol has evolved over the years.  The comparison (shown above) used by Sports Illustrated and other media outlets reporting on the story compares the Valencia logo to the Dark Knight logo released in 2008.  Perhaps DC Comics’ complaints would make more sense had they focused on the logo from the 1999 “Batman Beyond” animated series:

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At least with the 1999 logo, the wings are in the same position as that of the Valencia logo.  This trademark lawsuit would be one we could understand. In any event, Valencia has used a bat in its official team crest since 1922.  The City of Valencia has incorporated a bat in its coat of arms for even longer.  Batman didn’t emerge until 1939.  The bat logos for each have undergone a number of changes through the years, but for whatever reason, this is the first time DC Comics saw a problem.

It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

Four Loko Manufacturer Not Immune From Suit As Manufacturer of Alcohol

The father of a Four Loko drinker who was shot and killed by the police has been granted a second chance to pursue his claims against the drink manufacturer.  After the death of Ron Fiorini, a 23-year old college student, Fiorini’s father, Brett Fiorini, filed suit against City Brewing Company, LLC in the Superior Court of Fresno County (CA) and asserted negligence and strict liability claims.  Specifically, Fiorini alleged that Four Loko’s combination of alcohol and caffeine, as well as other stimulants, was unreasonably dangerous and increased the risk of violent and other high-risk behavior.  The circuit court granted City Brewing’s motion for summary judgment on the grounds that the company was protected by the civil immunity in California’s dram shop statutes.  Last week, a California appellate court reversed the judgment in favor of City Brewing.  The case is Fiorini v. City Brewing Co., LLC, No. F067045 (Cal. App. 5th Nov. 7, 2014).

We have written before on Four Loko lawsuits, but factually, this one offers a few new twists.  On the day of Fiorini’s death, he and some friends purchased two cans of Four Loko and a quantity of beer from a convenience store.  Thereafter, Fiorini drank the Four Loko and some beer and began acting agitated and disoriented.  Fiorini became delusional, grabbed a shotgun, and started shooting at a fence, exclaiming that “they” were coming for him.  When police arrived, Fiorini wielded the gun on the front porch and police opened fire.  The crux of the lawsuit is that had the Four Loko not contained caffeine and other stimulants, Fiorini would have lost consciousness due to his level of alcohol consumption.  Instead, he remained awake in his disoriented state.

On appeal, City Brewing argued that the trial court correctly granted its motion for summary judgment based on a California statute which protects the manufacturers of alcohol from liabilty for common consumer products, i.e. alcohol.  The Court, however, held that an alcoholic energy drink, which combines alcohol and caffeine, is not a common consumer product for the purpose of statutory immunity.

While we here at Abnormal Use recognize that the alcoholic energy drink is a fairly new phenomenon, we question whether the risks are not common knowledge.  People know the risks of alcohol.  They know the risks of caffeine.  It doesn’t take a chemist to presume what the risks may be of combining those two items.  After all, it is what probably drives most people to purchase Four Loko in the first place.  The Court rejected this so-called “deconstruction” approach, but it is certainly an approach we would have considered taking.

Now that the case has been remanded back to the trial court, we are interested to see what a jury may do with these claims.  Four Loko has had its share of bad press over the last few years.  It is now time to see whether that negative reputation holds up to a legal analysis.

TV Review: USA’s “Benched,” Starring Eliza Coupe

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This past Tuesday night, the USA network aired the premiere episode of “Benched,” a new legally themed sitcom starring Eliza Coupe (“Happy Endings,” “Scrubs”) as an ex-corporate lawyer experiencing the trials and tribulations of life as a public defender. Created by Michaela Watkins and Damon Jones, “Benched” brings the fun back to the legal sitcom in ways many of its recent predecessors have failed.  While “Benched” is not a perfect depiction of the legal profession, lawyers, particularly those engaged in a criminal practice, will relate to the challenges faced by its PD protagonist.

Coupe plays Nina Whitley whose life as a prominent corporate attorney is derailed by a comedic in-office blow-up following her discovery that she failed to make partner.  Now plagued by the gossip surrounding her breakdown, Whitley finds herself with few employment options despite her impressive pedigree.  Reluctantly, she takes a job with the public defender’s office in an attempt to revamp her career, but in the process, rediscovers herself.

At least in the pilot, the focus is exclusively on Whitley and set primarily within the confines of the courtroom and the public defender’s office.  We assume, however, that the show may dive deeper into Whitley’s personal life in future episodes based on the groundwork set forth in the pilot.  Rounding out the cast are Jay Harrington as fellow public defender Phil Quinlan, Fred Melamed as Judge Don Nelson, Jolene Purdy as legal intern Micah, and Carter MacIntyre as Whitley’s ex-fiancé turned prosecutor Trent Barber.

The pilot sets the stage for Whitley’s career path.  Waiting to become the next partner at her law firm, Whitley discovers that the position has been given to her attractive yet less legally-qualified colleague.  Enraged by the news, Whitley unleashes an epic rant on her firm and co-workers which ends with her smashing a vase given to the firm by Sir Elton John himself.  Preceded by exaggerated rumors of her blow-up, Whitley emerges in the public defender’s office and immediately learns she is scheduled to be in court for numerous arraignment hearings five minutes later.  As if walking into court completely unprepared wasn’t bad enough, Whitley discovers that the prosecutor is none other than her ex-fiancé, now legal nemesis.  Frustrated after “losing” multiple requests for bail, Whitley finally uses her legal moxie to achieve having bail set at $1 for an alleged diaper thief, much to the chagrin of her nemesis.

We here at Abnormal Use are not criminal lawyers, and we certainly do not pretend to know the internal machinations of a public defender’s office.  ”Benched” goes out of its way to create a stark contrast between the work environment of those in the public sector from the cozy confines of a big law firm.  Just as many shows exaggerate the perceived “luxuries” of the firm life, we assume “Benched” took similar liberties with the PD’s office.  We seriously doubt the typical PD’s office mirrors the chaotic confines of a debt collection call center.  Nonetheless, many of the portrayals of the difficulties faced by lawyers in the public sector are well-founded.  Too many files without the time or opportunity to work them up as much as the lawyer would prefer is not just a story made for Hollywood.  Yet, like Whitley, lawyers make it work.

At its roots, “Benched” is a comedy and Coupe will certainly make you laugh.  For lawyers, the show is more than just a half hour of comedic relief.  Whether or not the message was intended, “Benched” serves as an excellent reminder of what makes this profession so great. Regardless of a lawyer’s practice area, there will always be more work that can conceivably be addressed.  Yet, when the lights come on in the courtroom, the skills take over and lawyers find a way to make each case look like it is the only one on his or her radar.  Like any great lawyer, Whitley finds a way to thrive in the face of insurmountable odds.  While the general public will love Coupe as an actor, lawyers will love Whitley as an attorney.  Sure, “Benched” takes some artistic liberties with the legal profession, but lawyers will certainly be able to relate to its shenanigans.

“Benched” airs on USA Tuesday nights at 10:30 pm EST.

Denny’s Settles Hot Coffee Case Following Child’s Injury

According to a report from The Buffalo News, G.B. Restaurants, the parent company of Denny’s, recently paid $500,000 to settle yet another hot coffee-related lawsuit.  While this settlement is not so far removed from the 20th anniversary of the infamous Stella Liebeck-McDonald’s hot coffee case, the underlying theory of liability couldn’t be more different.  In this case, Jose Adams and Sally Irizarry of Puerto Rico sued the restaurant chain after their 14-month old daughter was burned by hot coffee in a Buffalo, New York Denny’s.  The daughter sustained those burns after she grabbed a cup of coffee off of the table and spilled it on herself.  The crux of the lawsuit is whether the waitress was negligent in placing the coffee within arm’s reach of the child – not that the coffee was unreasonably dangerous as alleged in the Liebeck suit.

With every new hot coffee case that hits the news, the media can’t help itself but to make comparisons to the now 20-year old Liebeck case. (We tend to do a bit of the same ourselves, but that’s why you love this blog, right?) In fact, The Buffalo News began and ended its report with references to the Liebeck case even though the only link those cases share is the presence of hot coffee.  Without the Liebeck case coming before it, we doubt this case would have garnered its own headline (or be the source of blog fodder).

Liebeck comparisons aside, this case has its own liability issues.  We do not know much about the facts of the case, but we have to wonder how long the cup sat on the table prior to the child pulling it off.  As former patrons of Denny’s, we know that table space can be limited depending on the size of the food orders.  Also, as parents, we certainly can empathize with the perils of having young children in restaurants.  However, we are also cognizant of a child’s reaching hands and plan accordingly.  Should a waitress be responsible for placing the coffee too near the child?  Maybe, but these other factors should also be considered when analyzing how the coffee got onto the child in the first place. We’ll keep you posted on this case if circumstances warrant.

Pink Panties v. Colonoscopy: Office Prank Gone Awry

According to a report from The Huffington Post, a Delaware man has filed suit after waking up from a medical procedure wearing women’s underwear.  The plaintiff, Andrew Walls, claims that surgeons from the Delaware Surgery Center dressed him in pink panties while he was under anesthesia to have a colonoscopy.  According to the complaint filed the the New Hanover (DE) Superior Court:

When the plaintiff recovered from the effects of the anesthesia administered by defendants, he awoke to realize that while he was unconscious pink women’s underwear had been placed on his body.  . . . When the plaintiff initially presented for his colonoscopy he had not been wearing pink women’s underwear and at no time did the plaintiff voluntarily, knowingly or intentionally place the pink women’s underwear upon himself.

Walls was apparently an employee of the medical facility and the underwear switch was a part of an office prank.  Nonetheless, Walls claims that he suffered from severe emotional distress as a result of the 2012 incident which ultimately cost him his job.

We here at Abnormal Use understand how Walls might be angry by the office prank gone wrong.  Even good natured fun can cross the line at times.  However, is waking up in pink panties really lawsuit worthy and, if so, what are his damages?  It would certainly be unnerving to undergo surgery and wake up wearing someone else’s underwear, men’s or women’s.  But, in the context of an office prank, it loses some of its bite. In this case, Wall already subjected himself to having his co-workers conduct the colonoscopy – probably the most humiliating procedure in the book.  How emotionally traumatized can one be over some lacy underwear after that?  We can appreciate the anger, but mental anguish to the point he can’t function on the job is going to be difficult to prove.

With that said, we appreciate the fact that no one wants to be on the wrong end of a prank – particularly during a medical procedure.  Walls has every right to be miffed.  Somewhere in the Hippocratic Oath it states that, co-workers or not, people should trust a medical staff not to dress them up in pink panties during a medical procedure.  However, the legal standard states that it is hard to recover with no damages.

No Wings for Red Bull? Company Settles False Advertising Suit In New York

According to a report from BevNet, energy drink manufacturer Red Bull has settled a proposed class action lawsuit filed against it for $13 million.  The suit, filed last year by Benjamin Careathers in the U.S. District Court for the Southern District of New York, alleged that Red Bull’s signature “It gives you wings” slogan is false and misleads customers about the drink’s superiority.  While the company’s advertisements may in fact show Red Bull drinkers growing wings, the plaintiff alleges that Red Bull offers no increased performance, concentration, or reaction speed.  As you might expect, Red Bull has denied any liability.

We assume – and hope – that the plaintiff didn’t actually believe Red Bull would give him actual wings.  (We doubt New York recognizes the “negligent failure to bestow wings” cause of action.). In fact, we seriously doubt that Red Bull would have paid out millions on such claims even if it was concerned about litigation costs. As such, we will refrain, mostly, from commenting on the absurdity of such a lawsuit and focus on the more plausible allegations.

This lawsuit was never about wings, but rather, it centered upon whether Red Bull actually delivers that energy fix we all crave.  After all, that energy boost is why people spend $3 on an 8-ounce drink in the first place, right?  Or, $2 for a cup of Starbucks coffee, for that matter.  The suit, however, alleges that Red Bull’s primary active ingredient (caffeine) is the same as that of coffee and, thus, it is not worthy of the premium price.  Maybe so, but the suit fails to take into account the cognitive effects that come along with drinking an “energy drink.”  Even if it offers a mere placebo effect, the energy drink didn’t become a multi-billion dollar industry without repeat customers.

The truth is that the energy drink is not some new phenomenon.  For centuries, people have been looking for ways to give themselves an extra burst of energy.  Coffee has been, and continues to be, the drink of choice for many across the globe.  However, in the 1960′s, Japanese manufacturer Taisho upped the ante when it released Lipovitan D – an energizing tonic sold in mini-bottles.  Thereafter, other beverage companies joined in the game.  Pop culture legend Jolt Cola was once marketed to the masses as having “all the sugar and twice the caffeine.”  Those were the days. Even the soft drink giants, Coca-Cola and Pepsi, have tried their hand at distributing coffee replacements over the years.  Today, the game has evolved into the billion dollar “energy drink” industry featuring companies like Red Bull and Monster.

Our guess is that this lawsuit will have little, if any, impact on the energy drink industry.  For those angry about Red Bull’s alleged false advertising, Red Bull has placed $6.5 million of the $13 million settlement into a fund for consumers.  If you have purchased a Red Bull in the last 10 years, you can go here for a $10 refund or two free Red Bull products.   No word on whether the free products give you wings.

Outrage! Walmart Asserts Affirmative Defenses in Tracy Morgan Case

Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured.  The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others.  Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact.  According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone.  He has pleaded not guilty  to death by auto and assault by auto charges.

Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar.  According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera).  One of those affirmative defenses, however, prompted much criticism.  Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.”  The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.

Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”

We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation.  Is Walmart attempting to shift all or some of the blame to the plaintiffs?  Certainly.  That is the very nature of an affirmative defense.  Should Walmart be publicly criticized for it?  Absolutely not.  Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt.  N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries.  As such, Walmart is raising a defense which it is entitled to raise by law.

We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case.  However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings.  If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury.  This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law.  Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading.   As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived.  If discovery reveals that the defense is groundless, then Walmart can always withdraw it.

We wonder if the media would report on that development.