Dismissal Of Erection-Causing Motorcycle Lawsuit Affirmed On Appeal

When men reach a certain age, they purchase sports cars or motorcycles to make them feel younger. The “mid-life crisis,” if you will.  According to the allegations in a recent lawsuit against BMW, this phenomenon took an entirely new angle for one California man.

As reported by The Marin Independent Journal, a California appellate court affirmed the dismissal of a 2012 lawsuit filed against BMW North American and Corbin-Pacific Inc., a manufacturer of motorcycle seats. In the suit, Henry Wolf alleged that he suffered from a multi-day erection after riding his 1993 BMW motorcycle for two hours allegedly due to vibrations stemming from the “ridge-like” seat. The suit contained product liability, negligence, and negligent infliction of emotional distress causes of action. None of the claims were properly before the court, apparently. The trial court previously found in favor of BMW and Corbin-Pacific due a lack of evidence supporting Wolfe’s claims. Likewise, the appellate court found that the appeal “fails to comply with the rules of appellate procedure” and “contains no intelligible argument.” As a result, the dismissal was affirmed and Wolfe was ordered to pay the defendants’ costs on appeal.

We don’t know what to make of the merits of this case. This is the first we have heard about a motorcycle inducing a prolonged erection. At the trial level, Wolfe’s urologist, Dr Jack McAninch, did, in fact, testify that Wolfe suffered from priapism, a condition involving a persistent erection. Likewise, Wolfe also offered testimony from a neurologist, Dr Jonathan Rutchik, that it was possible for vibrations from a motorcycle to cause priapism (this testimony was apparently excluded).

There is certainly an infinite number of jokes we could make about the relationship between motorcycles and the male anatomy. But, hey, we are professionals.

Exploding E-Cigarettes: The Combination Of Batteries And Heat Has Expected Result

Recently, electronic cigarettes, battery-powered vaporizers which simulate the feeling of smoking without burning tobacco, have taken the tobacco industry by storm. While they claim to be a new, “safer” alternative to traditional cigarettes, the benefits and health risks of e-cigarettes remain uncertain. Perhaps the more immediate safety risk, however, is not with the effects of inhaling vaporized nicotine, but rather, with placing a battery-powered device in one’s mouth. According to a couple of California men, such a risk resulted in their e-cigarettes exploding.

As reported by The Bakersfield Californian, Vincent Garza has filed suit against e-cigarette manufacturer, Flawless Vapes and Supplies, LLC, as well the stores at which he purchased the e-cigarette and the battery charger, claiming that he suffered severe injuries to his mouth, tongue and finger as a result of an exploding e-cigarette. Gregory Phillips is also filing suit because his e-cigarette allegedly exploded in his pocket, causing severe injuries to his leg. The suits allege that the manufacturing and design of the e-cigarettes does not take the appropriate measures to ensure that the devices are safe.

Obviously, no consumer product should be placed on the market if it explodes when operated properly. Nonetheless, we here at Abnormal Use can’t say we are even remotely surprised by these allegations. E-cigarettes typically have a heating element used to atomize the “e-liquid” solution to create the vapor. Heat + battery + mouth would seem to equate to a dangerous proposition. Even if e-cigarettes are “safer” on the lungs than traditional cigarettes, it seems as if they are just replacing one safety hazard with another. To be fair, we are not aware of any evidence that exploding e-cigarettes are actually a significant problem. Millions of e-cigarettes have been sold, and these lawsuits represent a statistically insignificant minority, numerically speaking. Our point is simply that the risk should have been anticipated. In the grand scheme of things, we suppose that risk, when compared to the known risks of smoking traditional cigarettes, is worth the trade off.

Possum Law: The Case With Monumental Implications


Every now and again, some important legal news comes from our own backyard here in the Carolinas. None may be more important than the current legal battle over the New Year’s Eve “possum drop” (think Times Square, but with a possum) in Brasstown (Clay County), North Carolina. Earlier this year, People for the Ethical Treatment of Animals (PETA) filed suit seeking to have a North Carolina statute which suspends the application of wildlife protection laws to possums from December 29-January 2 each year (signed into law by Governor McCrory on June 11, 2015) declared unconstitutional. The law at issue was aimed to protect the annual Brasstown tradition of counting down the new year by lowering a live possum in a clear plastic box in front of hundreds of spectators.


The battle has been brewing since 2011 as PETA began challenging Brasstown’s use of a live possum for its signature event. A previous law authorizing the practice, which applied only to Clay County, was struck down by the court. As a result, the North Carolina Legislature took the matter statewide much to the chagrin of PETA. According to the complaint, the statute is unnecessary as previous “possum drops” have included such apparently acceptable substitutes as “a road-killed opossum (shampooed, blow-dried and frozen), a porcelain opossum figurine, an empty box decorated with photos of opossums, and a pot reportedly filled with opossum stew.”

The State moved to dismiss the lawsuit on the grounds that PETA lacked standing to challenge the constitutionality of the law. Last week, however, the Court denied the motion and set the case for a hearing on December 11th to determine whether Brasstown will be ringing in the new year with a live possum or some frozen, shampooed roadkill. Regardless of the outcome, we are certain the decision will be as influential as Marbury v. Madison. We will keep you posted in time for you to make your New Year’s Eve plans.

U.S. Soccer Announces New Safety Initiatives: Just How Effective Are They?

In response to a class-action lawsuit filed last year against FIFA, U.S. Soccer, and the American Youth Soccer Organization, the United States Soccer Federation has announced a number of new safety policies to address head injuries in the game of soccer. As reported by The New York Times, the new regulations, which will be mandatory for U.S. youth national teams and recommended for other soccer associations beyond U.S. Soccer’s control, include the prohibition of players age 10 and younger from heading the ball. In addition, substitution rules will be modified (the specifics have not yet been announced) to help monitor players suspected of sustaining a head injury in the field of play. The announcement ends the suit filed last year in federal court in California by a group of players and parents concerned with the way soccer leagues monitor head injuries. The plaintiffs sought rule changes and not financial damages.

In this regard, we suppose the plaintiffs should proclaim, “Mission accomplished.”

We here at Abnormal Use fully support safety initiatives in sports. While we understand and support the intent of these new initiatives, we wonder how effective they will be. In regard to the unspecified new substitution rules, we again appreciate the intent. Assuming the new rule allows a temporary substitution while a team monitors a suspected head injury, the rule would theoretically encourage teams to pull the injured player off the field without playing a man down. Makes sense. But why should a head injury be treated differently than any other injury in this regard? Who monitors whether a player has a suspected head injury? What is to keep a player who injured a knee, but can’t leave the field without using one of the team’s three substitutions or forcing the team to play a man down, from saying he also hit his head and, thus, alleviating his team from the predicament? Maybe we are over-thinking this (as usual), but it seems a rule like this could cause more difficulty than good.

The bigger hole with substitution rule (again, assuming it is for a temporary substitution), though, is that it doesn’t address a fundamental principle in all sports – players want to be on the field. Players at all levels, in all sports, often hide or minimize their injuries so they can continue playing. Sure, soccer players are aware of the current substitution rules and don’t want to put their teams at a disadvantage, but what they really want is to stay on the field regardless of whether there is or is not a sub. For this reason, we hope that the new rules have some measure of monitoring for suspected injuries or else they might not have much of an effect.

Prohibiting headers by young players is a noble idea. On the surface, what better way to limit head injuries than keeping kids from purposely striking balls with their heads? The prohibition, of course, would also seem to limit the number of mid-air collisions occurring between players leaping to head balls. This much is good. It ignores the fact, however, that soccer remains a contact sport. A contact sport where players do not wear protective head gear. According to the complaint in this matter, nearly 50,000 high school soccer players sustained concussions in 2010. That number is greater than the combined total of players in baseball, basketball, softball, and wrestling. We assume that only a percentage of those numbers were injuries sustained in the course of a header. Rather than simply forbidding the practice for youth (which will become an important part of the game as they progress through the ranks), why not consider head gear which will aid in all aspects of the game?

Ask the NFL how that has worked out.

NFL Player Has Had Enough of Daily Fantasy Sports Site Commercials (At Least One of Them)

If you are like us, you are a part of the growing number of people who are getting sick of the incessant commercials for those daily fantasy sports sites, FanDuel and DraftKings. Count Washington Redskins wider receiver Pierre Garcon as one of them. According to a report from ESPN, Garcon has filed a class-action lawsuit against FanDuel (but not DraftKings – more on that below).  The suit, filed in federal court in Maryland, accuses FanDuel of misusing players’ names and likenesses without proper licenses or permission.

To be fair, Garcon is not necessarily upset about the sheer volume of the commercials, but rather the frequency with which his name occurs in them. For example, in one 28-minute infomercial, Garcon’s name is seen 53 times. We assume the 53 times is more than overkill as Garcon would have taken issue with the use of his name even once.

This case is interesting on several fronts. First, this isn’t necessarily a case of a company fraudulently acting as if a famous person is endorsing its product.  While we admittedly have not seen every commercial or the 28-minute infomercial (thankfully), we have not seen an instance where Garcon’s name is being used in a manner that would even imply that he is a FanDuel supporter. Rather, Garcon’s name is used in examples of how the fantasy sports site operates. Users draft players like Garcon based on daily “salaries” contingent on the player’s statistics and value. As a decent player with decent fantasy value, Garcon’s name and statistics are bound to come up in the examples.

FanDuel apparently takes the position that it has every right to use Garcon’s name in this context. As FanDuel spokeswoman Justine Sacco said in a statement, “We believe this suit is without merit.  There is established law that fantasy operators may use player names and statistics for fantasy contests.”  The law she is referring to is the case of National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd 1997), in which the Second Court of Appeals held that federal copyright statutes do not allow for the ownership of data. If this case really is about data, then maybe FanDuel has an ally.

Apart from the merits, the more intriguing thing about this lawsuit is the fact that DraftKings, who advertises in a similar manner to FanDuel, is not a party. The simple answer to its omission is that DraftKings has a marketing relationship with the NFL Players Association and such it is permitted to use the players in its advertising. The more interesting question though is whether DraftKings played any role in urging Garcon and the NFLPA to bring the suit in the first place. What better way to take down a competitor than to sit back and watch a class action lawsuit unfold against it?

Georgia Court Dismisses Defective Sperm Suit

Last week, a Georgia court dismissed a lawsuit filed against a sperm bank and a sperm donor who allegedly engaged in some foul play in selling their product. The suit, filed in March by Canada residents Angela Collins and Margaret Elizabeth Hanson, accused Xytex Corporation of misleading its customers as to the true nature of the sperm’s donor. Specifically, Collins and Hanson alleged that Xytex employees informed them that their donor was “smart, healthy and mature” when in fact he was schizophrenic, dropped out of college, and had been arrested for burglary. We assume Hanson and Collins started looking ahead to their baby’s teenage years and didn’t like what they saw. We also assume that they are unfamiliar with Steve Jobs.

The suit contained causes of action for fraud, negligence, and product liability. In his order, Fulton County Judge Robert McBurney determined that each claim was “rooted in the concept of wrongful birth,” which is not recognized under Georgia law. Nonetheless, Judge McBurney noted the complicated issues presented by the development of reproductive science, stating:

Science has once again – as it always does – outstripped the law.  Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services.  After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.

We here at Abnormal Use wholeheartedly agree with Judge McBurney’s decision. The viability of wrongful birth claims aside, the birth of a child is always a crapshoot whether conceived naturally or through artificial means.  The beauty of life is its randomness and unpredictability. While we have made strong progress in genetic research, there is no way to accurately predict everything about a new life. Nonetheless, parents love and  care for their children regardless of their child’s health history or their susceptibility to making good or bad life choices. It is a part of life. We can’t outwit it regardless of whether we conceive naturally or through the aid of a sperm bank.

Given the unpredictability of life, we question whether obtaining inaccurate (or even fraudulent) information from a sperm bank should warrant a valid claim. This can of worms none of us wants to open.

Bath Salts Under Siege: Eighth Circuit To Hear Challenge To Analogue Drug Act

Back in 2013, James Carlson, owner of the Last Place of Earth head shop in Duluth, Minnesota, was convicted on 51 counts of peddling synthetic drugs. He was sentenced to 17 1/2 years in prison and ordered to forfeit $6.5 million. Carlson was accused of selling synthetic drugs misbranded as incense, potpourri, bath salts, and glass cleaner, the effects of which mimic illegal narcotics and hallucinogens. Carlson’s defense? The government led him to believe the products he was selling were legal. Carlson feels so strongly that he was in the clear that he has taken his case to the Eighth Circuit Court of Appeals.

According to a report out of CBS Minnesota, Carlson is challenging the constitutionality of the Federal Analogue Drug Act, 21 U.S.C. § 813, a section of the Controlled Substance Act allowing any chemical “substantially similar” to a scheduled controlled substance to be treated as if it were one of the scheduled drugs. Carlson contends that the law is so vaguely worded that it is impossible to know if one is violating it. At his sentencing hearing in 2014, Carlson claimed that over 1,000 other Minnesota businesses were selling the same products.

The purpose of the Analogue Drug Act was to stay ahead of the curve in combating the ever changing molecular formulas of banned substances. With that said, we have grown weary of phrases like “substantially similar.”  What is and is not “substantially similar” is a question of fact opening the door to pickles like the one faced by Carlson.  Just as federal prosecutors can argue that the substances sold by Carlson are substantially similar to scheduled substances, so too can others argue that they are not.  And, there is your dilemma.

Whether or not the Court determines the statute is unconstitutionally vague, this case is yet another example of the problems of federal drug regulation. Again, the overarching principle – to protect the health and safety of the public – is a good one. But we must ask if there is a better way to go about it? Maybe we wouldn’t have to worry about the existence of “synthetic” drugs if we better addressed how we handle the pure ones.

The Run-of-the-Mill Table Saw: Not Your Grandfather’s Open And Obvious Dangerous Condition

Recently, an Alabama man filed suit against Sears Roebuck & Co. after losing several fingers while operating a Craftsman table saw. According to a report from the Cook County Record, Victor Ingram’s fingers came in contact with the saw’s blade while he was “acting reasonably and exercising all due care for his own safety.” As a result of the accident, Ingram had to have multiple fingers amputated on his left hand. The suit alleges that the table saw was known to Sears (which owns Craftsman) to be dangerous when it was designed and manufactured. Specifically, Ingram alleges that Sears knew of available technology which could better guard the blade and which could trigger the blade to shut off if the blade made contact with flesh. However, the table saw did not incorporate such technology. The suit contains causes of action for product liability, negligence, and breach of implied warranty of fitness.

At first glance, this suit appears to be the prototypical “open and obvious” case. Obviously, the purpose of the table saw is to cut wood.  The risk of injury from getting one’s fingers too close to a moving saw blade would certainly be known to the reasonable person. We question how Ingram could have possibly been “exercising all due care for his own safety” if he allowed his fingers to touch the blade in the first place. On the other hand, the allegations are not that Sears failed to warn of such an injury, but that there was available technology which could have prevented it that Sears neglected to use. Back in 2011, we wrote on a similar suit involving Ryobi and its failure to incorporate the “SawStop” technology.  In that case, Dr. Stephen Gass, who invented “SawStop,” testified on behalf of the plaintiff that he had pitched his technology to a number of table saw manufacturers, but did not get any suitors. In case you were wondering, that case ended with a $1.5 million verdict for the plaintiff.

The question becomes whether “SawStop” or similar technology is a viable alternative design? Are we going to establish that an entire category of inexpensive table saws are defective because they don’t incorporate the technology? Has technology now caught up to product liability principles such that what was once “open and obvious” is now a design defect? For the record, SawStop now manufactures its own line of table saws.

The Birth Of The Marijuana Product Liability Litigation

Last year, we here at Abnormal Use questioned when we would see our first meaningful piece of product liability litigation arising out of the legalization of marijuana. Well, apparently, that time is now.  According to a report from ABC News, two Coloradoans who like to partake in the use of marijuana filed a lawsuit against Denver-based pot company, LivWell, alleging that the company grows its weed using an unhealthy pesticide. LivWell allegedly has protected its crop with Eagle 20 EW, a fungicide that can become dangerous when heated. It is banned for use on tobacco.  Authorities previously quarantined marijuana grown at the facility due to the use of Eagle 20 EW; however, the plants were released after they tested at acceptable levels.

While this lawsuit is not exactly what we had in mind when we contemplated marijuana litigation, it is not unexpected. Due to the conflict between federal and state law regarding the legality of marijuana, there are no federal regulations for the safe growth of marijuana. As such, states which have legalized marijuana must ask themselves what standards they wish to adopt. Colorado has a list of “approved” pesticides, but the list is not all-inclusive, and the research is far from complete.

What is the purpose of this lawsuit other than to be the first marijuana product suit? LivWell no longer uses Eagle 20 EW. The plaintiffs do not allege to be injured by the marijuana (in fact, there are no known cases of marijuana pesticide illnesses to our knowledge). The plaintiffs allege only that they want LivWell to be punished for using Eagle 20 EW. Lack of federal guidance aside, are the Colorado courts really the venue to set the regulatory standards for pot growth? We imagine the plaintiffs’ real intention is to bring life back to a simpler time, when they could grow their own marijuana underneath the protection of a black light in the guest bathroom.

New Suit Alleges Airline Cost-Saving Headed To The Toilet

Whether it is through added fees or the elimination of amenities, it is no secret that airlines have been looking at ways to save money. Such moves are the cost of doing business, we suppose.  A new lawsuit filed in the Philadelphia Court of Common Pleas, however, suggests that one airline is taking its cost-saving game to a whole new level. As reported by philly.com, five American Airlines workers have filed suit, accusing the airline of cross-using water jugs to transport toilet chemicals.  The water jugs allegedly come directly from the employee break room. The suit contains causes of action for public nuisance, fraud, and conspiracy; it also seeks an injunction for the airline to cease operations until the process is discontinued.

According to the report, the airline assumed the duty of cleaning its lavatories from an outside contractor in 2010.  The lavatories are supposed to be cleaned through the use of two pumps.  One to remove toilet waste from the lavatories and another to return deodorant cleanser, also known as “blue juice,” back into the toilets.  Unfortunately, the intake mechanism for the “blue juice” pump has allegedly broken on many Boeing 757s.  Rather than make the repairs, airline workers are allegedly directed to pour the blue juice into empty, 5-gallon water jugs and manually pour the jugs into the toilet.  Thereafter, workers allegedly return the water jugs to the break rooms without cleaning them. In turn, the water vendor picks the jugs up for re-filling.  And, so the alleged cycle of decontamination goes on.

As is the case with any new lawsuit, we here at Abnormal Use have no idea as to the merit of this case.  On the surface, the allegations certainly don’t seem to describe a sanitary practice.  On the other hand, we don’t know if anyone actually drinks from the uncleaned jugs. We would hope that after they are retrieved and replaced by the vendor that the vendor would also make investigate and/or clean them before placing them back in service.

We have to wonder whether this lawsuit addresses the drinking water itself or the process. In other words, could this be a case of disgruntled employees overburdened with the new task of manually refilling the blue juice?  If not, couldn’t this situation be remedied by having the employees transport the blue juice with a 5-gallon bucket rather than a jug?