CPSC To Go Interstellar Against Space Buckyballs?

Over the last several years, we here at Abnormal Use have chronicled the Consumer Product Safety Commission’s storied fight to ban the spherical desktop magnets known as Buckyballs.  While we often find the CPSC to take draconian measures, its persistent efforts to rid the globe of Buckyballs were way over-the-top. However, the CPSC may have to push its fight to new limits.  As reported by Space.com, Buckyballs are allegedly stirring up some trouble in the Milky Way!  For nearly 100 years, astronomers have been perplexed by absorption bands associated with the interstellar gas and dust of the Milky Way. Now, researchers have discovered the first unambiguous evidence through laboratory testing that the bands may be the fingerprints of Buckyballs.  That’s right. Buckyballs!

To be fair, these space Buckyballs are not exactly the desktop magnets we have come to love. Rather, these Buckyballs are soccer ball-shaped carbon molecules otherwise known as fullerenes. They got their name after their resemblance to the geodesic domes created by architect Buckminster Fuller (see Disney’s Epcot). While technically we may be dealing with two different Buckyballs, we imagine the hearts of the CPSC officials’ skipped a beat when they learned Buckyballs of any type had surfaced in outer space. In any event, we fully expect the CPSC to cite the space Buckyballs for failing to warn that they may cause absorption bands in our galaxy.

Perhaps we read too much science fiction, but can you imagine the CPSC war room if Buckyball CEO Craig Zucker had managed to deposit large quantities of Buckyballs in space? The CPSC would certainly issue recalls from all sales of Buckyballs to extra-terrestrial life forms. Zucker would respond by mocking the CPSC’s efforts with some clever propaganda regarding alien tolerance for digesting magnets. Thereafter, the CPSC would fight back by ordering nuclear strikes on the Milky Way. Of course, we would write about each stop in the process.

Sounds about right.

Almond Milk: Not Just Another Dairy Product

Ever wonder how to milk an almond? It is a question we here at Abnormal Use ask every time we mistakenly find ourselves in the middle of a health food conversation and someone urges us to try almond milk. Contrary to our suspicions, extracting milk from an almond is possible.  However, the process may be fudged from time to time according to a new lawsuit.  As reported by Time, Tracy Albert and Dimitros Malaxianis have sued Blue Diamond alleging that its Almond Breeze milk is made with far less almonds than advertised. Interestingly, the Almond Breeze packaging does not list what percentage of the milk is made from almonds; however, its website states that it only contains 2 percent almonds. Based on “extensive” Internet research, the plaintiffs allege that the majority of almond milk contains 25-33 percent almonds. The Almond Breeze packaging contains pictures of almonds and the phrase “made from real almonds,” which allegedly deceives customers into believing that the product is made “mostly” from almonds. (While we can understand how there can be a discrepancy between 2 percent and 25-33 percent if that is what it takes to make authentic almond milk, we question how 25-33 percent equals “mostly” in any mathematical universe.)

We have no idea whether there is a standard recipe for the creation of almond milk. Nonetheless, we question whether consumers can actually be deceived by an artificial milk substitute. As discussed in the Time report, this same almond milk issue has been discussed in the United Kingdom just three short years ago. The U.K.’s Advertising Standards Authority stated:

We considered that, whilst consumers might not be aware of exactly how almond milk was produced, they were likely to realize . . . that the production of almond milk would necessarily involve combining almonds with a suitable proportion of liquid to produce a ‘milky’ consistency.

In other words, almond milk is not actually “milk” at all. It takes a certain amount of processing to make consumers think they are drinking milk in the first place. Whether it is 2 percent or 25 percent almond, consumers should simply be amazed that you can, in fact, “milk” an almond.

Plaintiff Strikes Gold With New Adulterated Food Case

Over the years, we here at Abnormal Use have reported on a number of lawsuits involving foreign objects in food. While the contaminate may differ, most of these lawsuits are alike in one respect. Typically, the plaintiffs claim very minimal medical expenses but allege a whole lot of alleged emotional trauma. As a result, it is often difficult to assess damages in these food cases. While it is difficult to quantify emotional trauma, a new food case in Illinois may set the gold standard for questionable damages cases.  According to a report from the Madison Record, Elmo Kane of Tilden, Illinois, has filed suit against General Mills after discovering a gold tooth in his Pillsbury biscuit. Kane alleges that after opening and baking a can of Pillsbury Grands Southern Style Biscuits, he took a bite of one of the biscuits and “bit into someone else’s gold tooth.” Thereafter, he immediately placed the can and the tooth into a plastic bag. While the report is silent on the issue, we assume his next step was to his lawyer’s office. As a result of the incident, Kane alleges that he sustained mental anguish, disability, medical expenses, lost wages and earning capacity, and prevention from attending to usual affairs and duties.

We know very little about the basis of Kane’s damages claims. Nonetheless, we are naturally skeptical. While we can appreciate the disgust of discovering a foreign object in one’s food, we seriously question whether a gold tooth caused disability, a loss of earning capacity, and a prevention from attending to usual affairs. Because he didn’t swallow the tooth, we assume his medical expenses are limited to a trip to the dentist’s office to check on a chipped tooth. Unless, of course, he is so traumatized by the experience that he has been in constant psychological or psychiatric care.

While we could go on ad nauseam about our skepticism, the real intriguing point of this case is that Kane has already been compensated for his loss. After all, didn’t Kane strike gold when he bit into that biscuit? Out of all the foreign objects found in food, Kane discovered one of the few containing precious metals.  Even though gold teeth are not 100 percent pure, with gold selling at more than $1,100 an ounce, Kane is bound to put some money in his pocket. Particularly, when that gold tooth is kept pure in a nice plastic bag.

The Curious Case of the Renaissance Fair Juggler

According to a report out of the San Gabriel Valley Tribune, a lawsuit has been filed against the County of Los Angeles and Geoffrey Marsh, a juggler, alleging that a minor child was seriously injured when hit by an object tossed by the juggler at a renaissance festival.  The suit, filed by Felipe Arambula on behalf of himself and his minor child, alleges that the county failed to properly supervise activities at the fair, resulting in jugglers juggling around children with no safety measures.  Accordingly, the county’s conduct was allegedly “inherently dangerous and created a peculiar risk, nuisance and trap.”  Aside from the child’s alleged injuries, Arambula allegedly suffered stress from seeing his child struck by the wayward juggler. Here at Abnormal Use, there are only two things that we fear: Renaissance festivals.  And, jugglers.  Call us crazy, but there is just something about 15th Century cosplay and people rotating multiple objects in the air that gives us the creeps.  All fears aside, a lawsuit involving jugglers and a Renaissance festival  has us (cautiously) intrigued.

Even though we may have an unnatural fear of jugglers, we must admit that we have never thought about juggling as a negligent act. Reading between the lines from the report, it appears the plaintiffs’ theory of liability against the juggler is that he was negligent by juggling in close vicinity of children.  What is unknown is whether the juggler is a professional or just some random costumed fair attendee trying to immerse himself into the period.  One would think that a professional might not need the same spacing to juggle as an amateur.  On the other hand, is there a heightened standard of care for a professional juggler compared to that of the amateur juggler? What exactly is the reasonable and prudent juggler?  Juggling in and of itself is not really a specialized act.  Anyone with access to YouTube can learn to juggle on a basic level.  But, certainly there is a difference between juggling chain saws and juggling tennis balls.   Perhaps, the renaissance common law will offer some guidance.

Nonetheless, what is truly interesting about this lawsuit is the allegation that juggling is “inherently dangerous” and created a “trap.”  We despise jugglers much more than the average person, but we question how juggling is dangerous to anyone other than the juggler.  We recognize that an argument can be made that juggling must be inherently dangerous to others because the child was injured.  But, shouldn’t there be a duty on others to keep a proper distance from jugglers?  Calling the juggling a “trap” only makes sense if the juggler backed the child into a corner such that he had no chance to avoid falling objects.  If the theory is that the crowds were so large that people had no room to stay clear of the juggler, then we question how the juggler would have had the capacity to juggle in the first place.

We are curious to see how this lawsuit turns out.  We are even more curious to see if the defendants raise attendance at a renaissance fair as a comparative negligence defense.

New Rockstar Lawsuit: Consuming Massive Amounts of Caffeine (x4) Allegedly Leads To Heart Attack

News from the energy drink litigation carousel: Rockstar Beverage Corporation has now been sued in Los Angeles Superior Court after a man allegedly suffered a heart attack after consuming one of its beverages. According to a report from NBC, Plaintiff Oscar Maldonado claims to have consumed up to four Rockstar beverages in a 6-8 hour period and subsequently developed shortness of breath and chest pains. Over the next three weeks, his symptoms worsened. He was eventually told by doctors that he was having a heart attack. Thereafter, he was taken in for an undisclosed surgical operation. Now, Maldonado alleges Rockstar is to blame.

The specific allegations against Rockstar are nothing new in the increasingly popular energy drink litigation. The suit alleges that Rockstar drinks rely on large quantities of caffeine, a “substance well-known for imposing health effects upon consumers” and “known to play a role in triggering adverse cardiac episodes.” In addition, Rockstar contains taurine, an ingredient that allegedly has a similar effect on the heart muscles. Of course, Maldonado alleges that if Rockstar had properly warned him of the risks, he would have never consumed the Rockstar drinks.

We here at Abnormal Use have often been critical of these energy drink suits. This one is nothing new. At this point, we assume (perhaps wrongly) that everyone on the planet understands that most energy drinks provide that desired boost of energy through the use of massive amounts of caffeine and that caffeine is not-exactly known as being heart-friendly. In fact, Maldonado seemingly admits as much in his complaint  As such, we question whether any warning would have actually had any affect on Maldonado’s consumption.

Given the admittedly known risks of consuming large amounts of caffeine, we wonder how Maldonado works around the fact that he consumed not one, but four, Rockstar drinks in a 6-8 hour period.  We assume his defense will be that while he knew that consuming large amounts of caffeine was hazardous, he did not know that consuming large amounts of caffeine (x4) could be hazardous enough to result in a heart attack. Alas, Rockstar definitely should have warned him of that, right? Sigh.

CPSC Reacts to Tip-Over Hazard Phenomenon

Anchorit_Print_Image-WEB

The Consumer Product Safety Commission (CPSC) has announced a new educational campaign aimed at preventing furniture and television tip-over injuries and deaths.  According to the CPSC announcement, the program, dubbed “Anchor It!,” is designed to educate the public of the “hidden” dangers of tip-overs and to instruct on steps for tip-over prevention. “Anchor It!” consists of broadcast public service announcements, print ads, billboards, and an informational website (www.AnchorIt.gov).  In addition, the CPSC will distribute tip-over prevention cards containing the following helpful tips:

  • Buy and install low-cost anchoring devices to prevent TVs, dressers, bookcases or other furniture from tipping.
  • Avoid leaving items, such as remote controls and toys, in places where kids might be tempted to climb up to reach for them.
  • Store heavier items on lower shelves or in lower drawers.
  • Place TVs on a sturdy, low base and push them as far back as possible, particularly if anchoring is not possible.
  • If purchasing a new TV, consider recycling older ones not currently used. If moving the older TV to another room, be sure it is anchored properly to the wall.

If these tips seem simple and obvious, it is because they are.  With the exception of the availability of anchoring devices, these tips are simply a reiteration of the laws of physics and gravity.  It doesn’t take a Ph.D. in Physics to understand what it means to be “top-heavy.”  Anyone who has ever stacked items on top of each other or driven an ’84 Ford Bronco II understands this.  Yet, the CPSC commissioned “Anchor It!” to make sure you really understand.  Bravo.

Nonetheless, we here at Abnormal Use actually applaud the CPSC’s efforts.  The program comes on the heels of a new lawsuit against IKEA alleging that Swedish furniture chain failed to warn of potential furniture tip-over.  (However, we assume the CPSC wheels were turning on the “Anchor It!” program long before.)  Typically, we would have expected the CPSC to take draconian measures in reaction to the IKEA suit and issue a recall for all vertical furniture (see, e.g. Buckyballs).  Fortunately, in this instance, the CPSC has elected to educate consumers on the exercise of common sense to prevent tip-over hazards rather than needlessly yank products from the stream of commerce.

Competitor v. Competitor: Deceptive Packaging Reaches New Level

Not too long ago, we reported on a suit against Unilever in which the Orange County (CA) District Attorney’s Office accused the company of fudging the packing of its AXE line of male grooming products. Now, a new product finds itself the target of a deceptive packaging lawsuit, and the plaintiff bringing the action may surprise you.  Rather than a disgruntled consumer or, as in the Unilever case, an entity acting on behalf of consumers, the plaintiff is the target defendant’s competitor.

According to a report from the Star Tribune, Watkins, Inc., a Minnesota-based manufacturer of a variety of baking products including pepper and vanilla extract, filed suit against McCormick & Co. alleging that the spice giant is deceiving consumers. Specifically, Watkins alleges that McCormick decreased the amount of black pepper in its tins by 25 percent without shrinking its containers or lowering its prices. According to the complaint, McCormick’s and Watkins’ black pepper tins appear similar in size while maintaining different quantities of product. As such, McCormick’s packaging has allegedly led to confusion in the marketplace.

Reducing the quantity of product contained in a package is a common practice of manufacturers looking for alternatives to raising prices.  Nonetheless, we here at Abnormal Use can see how such a practice might possibly be viewed as deceptive. That said, we question whether Watkins is the appropriate plaintiff to file such a grievance.  If a consumers buys six ounces of a product under the reasonable belief that her or she is actually purchasing eight ounces., isn’t it the consumer who has been damaged?  In fact, Watkins seems to acknowledge as much as its complaint is littered with references to the deceived “consumer.”

Obviously, Watkins’ real beef is its belief that McCormick’s alleged deceptive packaging has damaged its share of the marketplace. Even if true, such damage is trivial.  McCormick has a 43 percent share of the U.S. black pepper market. Its next biggest competitor, Tone’s, has a 9 percent share.  Watkins’ current share is marginal at best.

With that said, this picture embedded in the Complaint (with insets provided by The Consumerist) tells an interesting story:

eightandsix

As you can see, the two McCormick tins appear to be the same size, but the quantities have decreased from eight ounces to six ounces.  The Watkins’ tin on the right contains six ounces of black pepper. Even though McCormick’s tin is clearly marked, we can see Watkins’ issue.  But, the real question is how many consumers actually purchase black pepper based on quantity versus the name brand to which they are accustomed? People know the McCormick name. We doubt Watkins has the same brand recognition. We question how many people faced with the perilous task of buying pepper, if any, have ever been torn with the choice between McCormick and Watkins and elected to buy McCormick because of the bigger tin? Certainly not us, as we are still trying to finish off the tin we bought many moons ago.

Social Media Paves New Ground In Contaminated Food Cases

It is not uncommon for people to come down with a case of “food poisoning,” typically due to ingestion of Salmonella or E.Coli bacteria. It is also not uncommon to hear people suffering from food poisoning claim that they contracted the illness by eating a certain food product at a particular restaurant. While these origin theories may be correct, they are often difficult to prove unless the person can show that many people who also ate that same suspect food also became sick. Salmonella and E. coli symptoms typically manifest themselves anywhere from 12 to 72 hours after the contamination.  With such a variance in the time frame, the person could have been exposed to the bacteria in any number of ways other than the initially suspect food products.  For these reasons, potential claims against the culprit often face an uphill battle.

Social media, however, is coming to the rescue.  According the L.A. Times, a number of customers took to Yelp in March to warn others about their negative, salmonella-inducing experiences at Don Antonio’s, a popular West Los Angeles Mexican restaurant.  When at least 12 patrons complained of contracting salmonella, the L.A. County Department of Public Health conducted an inspection of the restaurant and allegedly discovered a number of serious safety code violations. The Department had previously given the restaurant an “A” rating. Two of those complainants have now filed suit against the restaurant, alleging product liability, negligence, breach of warranty, and negligent infliction of emotional distress.

In yesteryear, it was very possible that salmonella and E. coli outbreaks like this one could have flown under the radar. These days, because of Yelp and other forms of social media, it is much less likely that outbreaks will remain clandestine. As such, when a claimant points the finger at a particular restaurant when inflicted with food poisoning, it is now much easier to prove (or at least corroborate) the merits of those allegations.

New Suit Alleges IKEA Failed To Warn Of Falling Furniture

According to a report from the Daily Local News, Pennsylvania woman Jaquelyn Collas has filed suit against IKEA after her two year old son was crushed to death in his bedroom by a dresser she purchased from the Swedish furniture giant. The crux of the suit is that the 136 pound, six drawer MALM dresser lacked “sufficient or proper warnings or instructions” and failed to include “sufficient or proper hardware, tools and equipment” to secure the dresser to the wall which would have prevented it from falling. Callas alleges that IKEA knew of the tip-over hazards associated with the dresser and other vertical furniture.

In response to the suit, IKEA issued the following statement to media outlets:

All of us at IKEA express our sincerest condolences to the Collas family. At IKEA, the safety of our products is our top priority. All of our products go through extensive testing and are regularly evaluated. IKEA chests of drawers are safe for their intended use when properly assembled and permanently attached to the wall, in accordance with the warnings and instructions. The best way to ensure the stability of chests of drawers is to permanently attach them to the wall.

IKEA’s statement regarding the warnings appears to be supported by the current assembly instructions accompanying the dresser.  On the top of the second page of the instructions, the following warning is found (in 30 languages):

Important!

This furniture must be affixed to the wall with the enclosed wall fastener.

Different wall materials require different types of fixing devices.  Use fixing devices suitable for the walls in your home (not included).  If you are uncertain about what type of screw of fitting to use, please contact your hardware store.

Smack in the middle of the step-by-step instructions, you will also find this image:

M10103347.pdf

With the written warning and accompanying diagram, it appears that IKEA has at least attempted to warn of the danger of vertical furniture contrary to Collas’ allegations.  (Of course, we do not know when Collas purchased the dresser and is at least possible that the instructions were modified thereafter.)  Regardless, we question whether such warnings should be necessary in the first place. Essentially, the tip-over hazard associated with any piece of vertical furniture is a result of physics and the law of gravity.   While the average person may not be well-versed in the nuances of physics or know that the standard acceleration due to gravity is 9.8 meters per second squared, they should be aware of the general center-of-gravity principles in layman’s terms. Think Newton and his apple.

A related, but possibly more problematic issue, is that Collas may have a difficult time proving exactly how the dresser fell in the first place. Collas discovered the accident when she entered her son’s room and found him face-up, wedged between his bed and the dresser. Did the dresser fall on its own? Did it fall because the boy attempted to climb it? Did it fall due to some other unknown reason? Certainly, Collas’ fallback position will be that the dresser wouldn’t have fallen due to any reason had IKEA just told her to affix it to the wall. IKEA then counters that it did so as discussed above and circular argument enthusiasts rejoice.

At the end of the day, this is a tragic accident that could have been avoided.  We just question whether it was IKEA’s job to do so.

A Lawyer At Career Day? An Inspirational Journey Into The Minds of Fifth Graders

Recently, I was asked to speak at a local elementary school for Career Day.  The point of the program was to expose fifth grade students to a number of different career options while encouraging them to take school seriously at an early age. It is a worthwhile endeavor, to be sure. But as the program’s lawyer representative, it certainly was a challenge.  A member of the military, a professional hockey player, and a video game programmer had the easy task of making their jobs sound fun and exciting.  On the other hand, how does a lawyer, a civil litigator at that, impress a group of 10 and 11 year old kids? That was the daunting task before me.

To determine my baseline, I began by asking how many of the students knew what a lawyer actually was. Most of the students raised their hands. For those that did so, I then asked them to tell me what a lawyer does. Their response? Judge Judy. Not the response I sought, but at least I knew there was nowhere to go but up. I attempted to explain the legal profession with Judge Judy’s show serving as a backdrop of sorts, i.e. how the cases would have been prepared and tried had the litigants had legal representation.  As I feared, however, the actual Judge Judy is far more entertaining to fifth graders than the Judge Judy model I used.

So if Judge Judy wasn’t the answer, how could I possibly break through with these kids? How could I explain what lawyers do in terms that they could understand? I found myself at a complete loss, and I still had 10 minutes of my allotted time left to kill.  Searching for answers, I was saved by something I noticed on the classroom wall – the class rules.  That was my golden ticket.  What followed may have inspired many young minds to explore the legal profession – but also have earned me a spot on the teachers’ black list.  You be the judge.

The interaction went a little something like this:

ME:  So, what happens when you break one of these rules?

CLASS:  We get punished.

ME:  Who punishes you?

CLASS:  The teacher.

ME:  Well, what would happen if you had a lawyer?

CLASS: . . .

ME:  Let’s pretend you got accused of talking to a friend while the teacher is teaching.  You hire me to represent you.  What do I do?  I start by investigating the accusation.  I interview all of the potential witnesses. Those interviews might establish that no one actually heard you talking at all. Maybe the teacher was told that you were talking by John, who got his information from Kelly, who heard from Jennifer that you were talking. And, Jennifer might not be very credible because she has a long history of making false accusations and was on the other side of the room when she allegedly heard the offense.

Or, the investigation might reveal that you were actually whispering during class. The rule says no “talking” during class. Because “whispering” is technically not “talking,” maybe you didn’t break the rule after all.

With a strong defense in hand, we might have to take this case to trial. Even so, we might get a tip that all 12 of our jurors were spotted with bumper stickers on their cars which say, “Mothers Against Classroom Talking.” If that is the case, you are probably going down even if we have a strong defense, so we may need to explore settlement.

If we find out that you, in fact, were talking in the class and violated the rule, we go to your teacher and try to reduce your punishment. Even though the typical penalty for the rules violation may be 10 minutes of lost recess, we bargain for 5 minutes based on your apology and good behavior.

The hypothetical warranted a strong, positive reaction from the class.  Whether the reaction was the sound of bright, young minds being inspired to explore a legal career or that of minds spinning with new ideas on how to get out of rules violations is yet to be seen. The example was far from perfect and definitely overly-simplified the process. Nonetheless, what better way to explain discovery, statutory construction, and settlement negotiations to a fifth grade class? In any event, the kids seemed to have a better sense of what lawyers do following the presentation. On the other hand, the teachers were busy exploring the potential loopholes in their classroom rules.