Contaminated Food Recalls: The Remedy For A Mistake

Well, it has been a rough month for processed foods.  Several weeks ago, Kraft recalled 6.5 million boxes of macaroni and cheese after the discovery of metal shards in 8 of those boxes.  Last week, frozen-food manufacturer Amy’s Kitchen announced a recall of 73,000 cases of products over listeria concerns.  The recall affects those Amy’s Kitchen products which contain spinach, including vegetable lasagna, pizza, brown rice bowls, and breakfast wraps.  No illnesses have been reported, but the world’s finest chefs are sure to feel the effects of the recall.

It is hard to say whether it is worse to eat metal-laced macaroni or to suffer nausea and severe headaches arising from listeria laden pizza.  As consumers, we would all like to believe that the food we purchase from the grocery store is 100 percent safe.  In reality, mistakes can happen anywhere to anybody.  This is not just an inexpensive, processed food problem.  Even Whole Foods announced a recall of ready-to-eat products earlier in the year due to misbranding and an undeclared allergen.

With that said, product manufacturers clearly want to prevent negative effects as evidenced by Kraft and Amy’s Kitchen having ordered such massive recalls.  In addition to the desire for customer safety, litigation concerns almost certainly played a factor in these decisions.  While recalling 6.5 million boxes of macaroni when metal shards were found in only 8 of them may seem overly broad to some, the costs of litigation for a potentially widespread food contamination case is potentially far less than the cost of the recall itself.  Furthermore, a preemptive recall goes much further in promoting consumer confidence.

Gasp! Cheap Wines Allegedly Contain Arsenic, Suit Claims

According to a report from CBS News, a proposed class action lawsuit has been filed in California against a number of America’s top-selling wine producers alleging that some of their wines contain dangerously high levels of arsenic.  Specifically, they allege that certain wines contain up to four and five times the amount of arsenic the Environmental Protection Agency allows for drinking water.  There are 31 different wine brand names listed in the suit, including, among others, Franzia, Menage a Trois, Sutter Home, Simply Naked, and Beringer.

The lawsuit comes on the heels of a study by Kevin Hicks of BeverageGrades, a wine analyzing laboratory. Because there are few federal regulations on the labeling requirements for wine, Hicks decided to see exactly what makes up some of our finest wines.  After testing 1,300 bottles of wine, he made a shocking discovery.  According to Hicks, “The lower the price of wine on a per-liter basis, the higher the amount of arsenic.”  We here at Abnormal Use would have never anticipated such a revelation.

We know that hearing the word “arsenic” will always cause people to panic.  However, we do not know whether the allegations contained in this new suit, if true, are a cause for any real concern. The effects of arsenic are seen upon high levels of consumption over extended periods of time. Water is the only beverage which the EPA has set arsenic limits because, presumably, people drink more water over their lifetimes than other beverages like wine. The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada.

So, what does all this mean?  We have no idea.  What we do know is that there should be no surprise that wine from a box may not be as organic as you may like.  We here at Abnormal Use were only surprised that our cheap wine favorites, Boone’s Farm and Mad Dog, didn’t make the list.

Willie Nelson Latest Target of Music Copyright Infringement Suit

Just days after a jury found Robin Thicke and Pharrell liable to the tune of $7.4 million for channeling the late Marvin Gaye in creating their mega hit “Blurred Lines,” Willie Nelson finds himself as the target in a similar lawsuit.  According to a report from the Atlanta Journal Constitution, Ashley Wilson and the estate of Mark Reynolds have filed suit in federal court in Atlanta against Nelson claiming that his song, “Roll Me Up and Smoke Me When I Die” is a rip-off of their song bearing the same name.  Specifically, they allege that:

[T]he infringing work contains the same title and dominant line in the chorus as the original work, with substantially similar melody, rhythm and cadence, as well as substantially similar lyrical themes.

Nelson released his song on the Heroes album back in 2012.  Wilson and Reynolds allegedly wrote theirs in 1990, performed it throughout the 1990’s, and released it on Georgia radio.  In March 2012, prior to Nelson spending five weeks atop the American radio charts, the Wilson/Reynolds version was uploaded to YouTube.

We here at Abnormal Use will refrain from jumping to quick conclusions in this matter. Certainly, if Nelson is profiting by singing the exact same song of another without proper attribution, then he should pay for it.  On the other hand, we seriously doubt Nelson, Wilson, and Reynolds are the only potheads persons to come up with some ingenious title like “Roll Me Up and Smoke Me When I Die.”  If they all just happen to have similar stoned ideas, then perhaps no real infringing harm is done.

We don’t know what effect, if any, the Thicke/Williams lawsuit has had on this one.  However, we are concerned that with the verdict, these music infringment suits shall become more and more popular.  As both lawyers and music lovers, we are not happy with this turn of events.  We have often expressed concern that music has been on a steady decline since the 1990’s because every good idea has been used.  Every musician is influenced by those who came before him or her and those influences are naturally recycled into new songs.  What do we think will happen to music if every time one of those influences peeks its head in a new song, the forefather brings an infringement suit? Musicians could never listen to other music out of fear it might surface in their own.  And, if they never listened to music, they wouldn’t know what music is so they would never become musicians in the first place!  Alas! Music is dead.

Or, maybe we are exaggerating slightly.  Thinking about Willie Nelson songs will do that to you.

Court Finds Sizzling Nature of “Sizzling Fajita Skillets” Is Open and Obvious

In the latest news from the hot food injury front, a New Jersey appellate court affirmed the dismissal of a lawsuit against Applebee’s arising from some alleged steak fajita burns.  According to reports, a man ordered the signature steak fajita skillet (identified more specifically on the menu as “Sizzling Skillet Fajitas”) from a New Jersey Applebee’s back in 2010 and apparently did not feel he was “eating good in the neighborhood.”  When the man bowed his head to pray, he alleges that he heard a sizzling and popping noise coming from the fajita.  Thereafter, in the midst of his prayer, he felt grease burning his left eye and face.  Panicking from the burns, he knocked the sizzling steak fajitas into his lap, causing additional injury.  None of the burns were severe enough to cause scarring, apparently.  The man filed suit on the grounds that the restaurant and his waitress failed to warn him the steak fajita skillet meal was hot.  The court, however, found that any dangers posed by the dish were open and obvious.  The case is Jiminez v. Applebees’s Neighborhood Bar & Grill et al., No. A-2247-13T2 (N.J. App. 2015).

We have to agree with the Court’s ruling.  Any hot food failure to warn case should be thrown out as a matter of law when the food contains the word “sizzling” in its title on the restaurant’s menu.  Something just doesn’t sound right about ordering “sizzling” fajitas and suing the restaurant when those fajitas are, in fact, sizzling.

What makes the case interesting is a fact seemingly glossed over in the reports – when were the fajitas delivered to the table during the praying process?   Thankfully, we have the opinion to let us know that the food had been delivered prior to the man starting his prayer. With this fact in hand, it can be argued that the man should have observed the food sizzling prior to hanging his head over it.  The food didn’t leave the kitchen warm and wait until arriving at his table to begin sizzling.  On the other hand, if the man had begun praying before the fajitas arrived and the waitress delivered them under his bowed head, then arguably the waitress (and Applebee’s vicariously) could be held liable.  Such liability would not come from the temperature of the food but, rather, from the act placing the man in close contact to it without his knowledge.

The most notable omission from the news reports is that this case is absolutely not reminiscent of the infamous McDonald’s hot coffee case  even though they can’t help but claim it is.  This case had a single cause of action – a negligence claim sounding in premises liability.  The McDonald’s case, on the other hand, was couched in product liability where the hot coffee itself was alleged to be unreasonably dangerous and defective by virtue of its temperature.  We would have sided with the defendant here under either theory, but let’s at least try to not to compare apples to oranges.  Or sizzling fajitas to hot coffee.

New Suit Claims Helmets Turn Firefighters Into Bobbleheads

Every day, police officers, firefighters, and other first responders face the difficult job of protecting our well-being.  They are often placed in harm’s way with nothing to protect them other than their government provided safety equipment.  Providing the latest, most effective equipment is the least taxpayers can do to help protect these brave men and women.  A group of retired and active firefighters, however, has filed a new lawsuit, claiming that their equipment does more harm than good.

According to a report from the Tampa Bay Times, five St. Petersburg  city firefighters have filed suit in Pinellas-Pasco (FL) Circuit Court against Mine Safety Appliance Co. and Ten-8 Fire Equipment Inc., claiming that the helmets they were issued in 2010 were designed poorly and caused head and neck injuries.  Specifically, the firefighters allege that the 1044 Cairns model helmet, manufactured by Mine Safety and distributed by Ten-8, is uneven and causes musculoskeletal injuries.  Translation: These helmets allegedly turn the firefighters into life size bobble heads.

While the report is silent as to the nature of the injuries, we here at Abnormal Use can reasonably conceive how a weighty helmet could cause neck injuries.  After all, we are all prisoners of gravity and the hazards of top heaviness. Nonetheless, we question what alleged design defect in the 1044 Cairns model distinguishes it from any other helmet.  It seems as if any over-sized helmet would have the propensity to promote bobble head-like movement.  As such, even though the firefighters allege that this helmet is uneven, they might face some difficulty demonstrating that the injuries are the result of the 1044 Cairns and not repetitive trauma from prior models.  Further, it will also be interesting to see if this alleged problem is limited to the St. Petersburg department or whether it is more widespread.

Cadbury Eggs Alive And Well In America This Holiday Season


With Easter approaching, store shelves are quickly becoming stocked with products seeking to profit off of the season.  One such product is the iconic chocolate-covered, fondant-filled eggs known as Cadbury Creme Eggs.  For whatever reason, the Cadbury Egg has developed a tremdous cult following since the product was introduced some 50 years ago.  This fanaticism was put on display earlier this year when the world erupted over the announcement that the British candy manufacturer was changing its formula.  Cadbury lovers here in America, however, were put at ease upon news that the changes would have no effect on the Creme eggs they have come to love locally.  The reason?  Those chocolate eggs we have been eating were actually manufactured here in America by Hershey – not Cadbury – for the last 30 years.

Recently, American lovers of Cadbury eggs received more good news when reports surfaced that Hershey had reached a settlement with importers of English Cadbury chocolate.  Hershey sued the importers over the English Cadbury “black market” that has developed here in America, defying Hershey’s exclusive rights to manufacture Cadbury products.  Apparently, Hershey discovered that a substantial number of people actually prefer Cadbury chocolate manufactured by the original source.  Under the terms of the settlement. the importers will pay an undisclosed fine and be banned from importing the British chocolate.

We here at Abnormal Use have no opinions on the Hershey Cadbury versus English Cadbury debate.  Given the latest settlement, it appears to be a moot point unless you are traveling to the United Kingdom in the near future.  Nonetheless, for those of you who have enjoyed grocery store bought Cadbury eggs for the last 30 years, you can sleep easy knowing that no one – not even Cadbury – can mess with your Cadbury eggs this Easter season.

“Fifty Shades of Grey” Adult Products Allegedly Not Living Up To The Hype, New Lawsuit Says


Moviegoers everywhere took to theaters last weekend to catch the premier of Fifty Shades of Grey, the film based on author E.L. James’ erotic romance novel of the same name.  Over 100 million copies of the popular novel have been sold worldwide, elevating it to the top of numerous best seller lists.  Based on the hoopla and controversy surrounding the story’s sexual themes, we expect the film will share the novel’s success at the box office.  In fact, the “Fifty Shades” brand has become so popular that it has parlayed its success into numerous other products, including a line of adult toys and lubricants.  Unfortunately, like all other over-commercialized things in our culture, some of those spin-off products may not live up to the perceived quality of the source material.  And, guess what happens when products don’t live up to the hype?  We get lawsuits far more controversial than the book itself.

According to an MTV News report, California woman Tania Warchol has filed a proposed class action against Lovehoney, the manufacturer of the official “Fifty Shades” line of adult products, claiming that the “Fifty Shades of Grey” Come Alive Pleasure Gel for Her failed to meet expectations.  The product description contained on Lovehoney’s website website states:

Heighten your pleasure with Come Alive, an intimate arousal gel from the Fifty Shades of Grey Official Sensual Care Collection. Experience enhanced orgasms and stimulation as every tingle, touch and vibration intensifies.

Based on this description, Warchol alleges that she “believed the [gel] has powerful aphrodisiac qualities and would increase her sexual pleasure as advertised.”  However, after a couple of uses, the Come Alive Pleasure Gel allegedly didn’t rise to the occasion.

We are guessing Warchol will face a tough road ahead of her trying to meet her burden.  A quick review of the comments section on the product’s website indicates an overwhelmingly positive customer experience and a 4-star rating. Even though feedback on a product website can be, and often is, fudged by those with a vested interest in such things, the rest of Internet reveals similar results.  As such, even if it is a placebo effect, it looks like the product must be working for somebody.

Maybe Warchol should consider other external variables.

Or, if we are wrong, this lawsuit may just prove that Come Alive Pleasure Gel is as effective as a product as “Fifty Shades of Grey” is as fine literature.

Potential Lawsuits Lead to Draconian Measures

An occupational hazard for attorneys is being able to foresee the most benign things as potential lawsuits. The world is not really one giant lawsuit waiting to happen, but it sure seems that way. Call us old-fashioned, but we yearn for the days of yesteryear when people could enjoy their lives without fear of being sued. Unfortunately, our hopes appear to be nothing more than a pipe dream.

Case in point, NBC News recently reported on the rising number of towns which have banned or restricted sledding. Guess why anyone would want to ban sledding, the quintessential winter activity? Lawsuit concerns, of course. Mayor Roy Buol of Dubuque, Iowa, explained to NBC News in discussing his town’s recent ban:

We’re worried about litigation about the city not doing their research or their work to prepare sledding areas for sledders and making the city liable for the accidents that would occur on those properties.

We understand towns wanting to make sure their citizens are safe, but should they really have to be concerned about sledding liability? If a town encourages its residents to sled in a minefield, yes, it should be concerned.  But towns shouldn’t live in fear of being sued for the run-of-the-mill sledding accident. People choose where they want to sled.  When people choose to slide down a hill with nothing between them and the snow and ice but a piece of plastic, accidents are bound to happen. The city has nothing to do with that.

With that said, we understand the draconian measures these towns have taken. They can’t possibly pad every curb and utility pole and place cushioned backstops at the base of every hill. Until they do so, the risk of future litigation is real unless they just outlaw the very mechanism that can lead to those lawsuits in the first place. At least, that is what our lawyerly intuition tells us.

Coach Belichick, we know Mona Lisa Vito. And you are no Mona Lisa Vito.


Unless you been completely disconnected from the media over the last week, you have undoubtedly heard about the purported scandal arising out of the New England Patriots’ alleged deflation of footballs prior to the AFC Championship game. We here at Abnormal Use have our thoughts on the scandal, but we are not interested in wasting valuable space on the legal blogosphere reveling in the inflation pressure of pigskin. We do, however,want to discuss the most notable thing to come out of the “Deflategate” scandal – New England Head Coach Bill Belichick’s comparing himself to My Cousin Vinny’s Mona Lisa Vito.

The scandalous comparison occurred last Saturday during an impromptu news conference held in an effort to clear the Patriots of any wrongdoing. (You can find the full press conference here). In the conference, Belichick offered an elementary physics lesson in an attempt to explain how eleven of the Pats’ twelve footballs were discovered to be 2 psi below the required pressure limit. After doing so, Belichick exclaimed, “I would not say that I’m Mona Lisa Vito of the football world.” No, Coach, you are not.

There is no limit to the differences between Bill Belichick and Mona Lisa Vito.  Personality, charisma, and class are the obvious ones, but that isn’t what Belichick had in my mind.  He was referring to his use of scientific knowledge as a lay person to support his case in a manner similar to, but not quite the same as, Vito in the Vinny trial.  In reality, the differences between Vito’s testimony and Belichick’s comments are far more stark.

For starters, Vito was actually qualified as an expert.  Everyone remembers the infamous voir dire in which she rattled off enough information about ignition times to make Henry Ford jealous, leaving the district attorney speechless and with no concerns about her qualifications. Belichick, on the other hand, likely used no first hand knowledge at all and relied on whatever information team informants obtained from a Google search on air pressure.  No one left that press conference thinking Belichick could teach a high school physics class.

Base of knowledge aside, the biggest difference between Vito and Belichick is that Vito’s testimony left no doubts as to its truth. With her testimony, the case was won. The judge knew it. The jury knew it. The State knew it. There were no doubts. On the other hand, Belichick offered a possible explanation, at best.  His comments sparked more debate on the accuracy of his science and in his credibility than they settled. No one listened to Belichick speak and definitively felt that the Patriots were innocent of any charges.

After devoting a full week to My Cousin Vinny‘s twentieth anniversary, Vito and her trial testimony are topics we know well. For Belichick to compare himself to Vito by saying he is not like Vito is heresy. We assume he made the reference because, at least to him, he thought there was some similarity.  But Coach, we have news for you. Absent your reference, no one on the planet would have opined that using scientific words fed to you by your public relations manager makes you Mona Lisa Vito.

Real knowledge comes from being an out-of-work hairdresser.

Oh, and many thanks to friend of the blog Jay Hornack for reminding us that we needed to draft a post on this fateful subject:

Colorado Inmate Stands Up For Dez Bryant, Cowboys Fans Everywhere (For Only $89 Billion)

It is the week of the Super Bowl, the biggest sporting event of the year, and we here at Abnormal Use are having trouble getting excited. It has nothing to do with our beloved Carolina Panthers bowing down to the Seahawks earlier in these playoffs. No, our excitement is subdued because this is the first Super Bowl in our memory involving two teams that arguably shouldn’t be there. The Patriots are marred by “Deflategate” paranoia. The Seahawks are technically scandal-free, but everyone knows the NFC champ would have been the Dallas Cowboys but for the overturn of Dez Bryant’s crucial fourth quarter catch against the Packers. The NFL won’t do anything to stop the injustice.  Fortunately, Colorado inmate, Terry Hendrix, is not so constrained and has filed a lawsuit against the NFL, Commissioner Roger Goodell, and referee Gene Steratore seeking $88,987,654,321.88 over the abysmal call that kept the Cowboys out of the big game.

According to the complaint filed in the U.S. District Court for the Northern District of Texas, Hendrix, who apparently serves as counsel for “Dez Bryant, all Dallas Cowboys fans and all people in or from the sovereign republic of Texas,” is suing the defendants for negligence, breach of fiduciary duty, and “wreckless disregard.” He alleges that the video reversal of Bryant’s catch was “fraud, theft, and gross stupidity.” As a result, Hendrix claims that victory was clearly stolen from the plaintiffs because “the Cowboys’ offensive line would have perfectly created an ‘Autobahn’ for DeMarco Murray to drive into the endzone for the score and victory.”  Obviously.

The Super Bowl is big business. The least the NFL can do is make sure the right teams make it to the big game.  Like Hendrix said, the Cowboys obviously would have won but for the blown call (despite how they played the other 59 minutes).  And, they obviously would have gone on the road to beat Seattle where the Packers couldn’t win even when Russell Wilson throws four interceptions.  Just cancel the Super Bowl already and give the Cowboys the trophy.

Credit Hendrix for standing up for Bryant, the Cowboys, and the great state of Texas and trying to honor the integrity of the game.  We are certain when he recovers $89 billion from the NFL, Hendrix will share it with them evenly.