Gasp! Cheese Dogs Accidentally Find Themselves in the Marketplace

Not wanting to be outdone by Hebrew National, Kraft has seized its opportunity to corner hot dog related legal news. According to a CNN report, Kraft has recalled 96,000 pounds of Oscar Mayer hot dogs due to a package labeling error. On April 18, a consumer opened his package of Oscar Mayer Classic Wieners only to discover that the package contained cheese dogs. In a statement issued by the U.S. Department of Agriculture’s Food Safety and Inspection Service, the classic label is said to “not reflect the ingredients associated with the pasteurized cheese in the cheese dogs.” In other words, milk is not a standard ingredient in the average dog.

This recall comes just in time. We here at Abnormal Use can not imagine the horror of discovering that our hot dogs had been replaced by those horrid cheese dogs. Not even an April Fool’s joke could be that cruel. Cheese has no place inside of a hot dog. On top, maybe. Inside, never. Thankfully, we have governmental agencies like the Department of Agriculture to facilitate swift remedies to these types of ills.

In all seriousness, we understand the purpose of the recall. For business purposes, Kraft obviously does not want mislabeled products in the stream of commerce. For legal reasons, we assume the company wanted to protect itself from claims arising out of the accidental ingestion of milk, a known allergen. Or, from angry consumers who accidentally took a bite of such vile food products. The latter is a failure to warn claim even we could get behind.

Casino Loses Millions, Sues Card Manufacturer

Recently, we wrote about a man suing a Las Vegas casino after he lost $500,000 gambling while intoxicated.  As ridiculous as that suit may be, the Borgata Hotel Casino and Spa in Atlantic City is now vying for silliest casino lawsuit of the year.  In a new suit filed in federal court, the Borgatta is suing Phillip Ivey, Jr., a big time professional gambler, and Gemaco, Inc., a card manufacturer, claiming Ivey won $9.6 million in a baccarat card-cheating scheme.

We imagine the nearly $10 million in winnings was  against the house edge.

The real kicker is not that Ivey won such a large amount of money but, rather, how he was able to do so.  According to the complaint, Ivey exploited a defect in the cards that allowed him to improperly sort and arrange them using a technique called “edge sorting” – illegal under the New Jersey casino gambling regulations.  The cards, manufactured by Gemaco, were allegedly defective in that the pattern on their backs was not uniform.  Where the cards were supposed to have a row of small white circles designed to look like the tops of diamonds, some of the cards apparently only had half or quarter diamonds.  Allegedly, Ivey was able to sort desirable cards from undesirable ones after observing the defect.

We have to wonder when the Borgatta discovered this alleged defect. In an industry so heavily controlled and regulated, we find it hard to believe that any deck of cards would ever see the light of a casino floor without first being inspected and approved by the casino.  With so much money on the line, casinos have never been shy about self-policing.  If this “defect” was an obvious one, we imagine these cards would have been sent right back to Gemaco.  If there actually was a defect, then it was most likely so slight that it was undetected by even the most careful inspectors.  The fact that Ivey was able to notice the flaw is impressive. Sure, it is easy for the Borgatta to point the finger at Gemaco.  After all, its alleged flaw may have cost the casino nearly $10 million.  But, why did Borgatta use a card with a decorative card backing in the first place?  It seems like such cards would be more susceptible to non-uniformity and enable these types of situations.

We suppose a simple solid design would have been too tacky for the Borgatta.  A casino’s extravagance is what draws the gamblers in to throw away their money.  Unfortunately, this time it backfired.

Hot Dogs: New Standard for Food Purity

When we here at Abnormal Use think of “pure” food products, we think of mountain spring water or fresh fruits and vegetables.  Never do we think of hot dogs. Never (despite our love of hot dogs). However, the Hebrew National brand of hot dogs claims to be just that. Kosher beef. No fillers. No byproducts. No artificial flavors. In other words, Hebrew National claims to be as “pure” as a hot dog can get. We have nothing against the brand, but we still are skeptical about placing “pure” and “hot dog” in the same sentence. A class of consumers has taken such skepticism a step further and filed suit against ConAgra Foods, Inc., the manufacturer of the Hebrew National brand, claiming that these hot dogs were not, in fact, “kosher.” Last year, a federal district court in Minnesota dismissed the suit on the grounds that the First Amendment barred him from addressing the underlying religious questions. Recently, the Eighth Circuit nixed the dismissal and remanded the case back to the Minnesota court. The case is captioned Wallace v. ConAgra Foods Inc., No. 13-1485 (8th April 4, 2014).

It will be interesting to see what becomes of this suit now that it has gained new life. As we discussed above, we understand the skepticism surrounding claims of hot dog purity. But, these plaintiffs have taken things beyond mere skepticism and actually challenged the religious nature of the process. Here, the plaintiffs take issue with whether ConAgra followed proper religious procedures, despite packaging that claims to “meet a higher standard,” being made by people who “answer to a higher authority.” Interestingly, according to the Chicago Tribune, the plaintiffs do not claim to eat kosher themselves. We guess they are just looking out for those that do. Or, just want a better hot dog.

We are no experts on kosher foods and do not know exactly which part of the hot dog-making process to which these plaintiffs object.  We do know that these issues are to be taken seriously. Had these plaintiffs actually followed kosher practices, then we would find some merit behind the claims and understand the trial judge’s reasons for dismissing the matter on religious grounds. But that is not what we have here. What we have are plaintiffs that must have some other standard for their hot dogs. Even if Hebrew National’s claims are not 100 percent accurate (and we have no reason to believe they are not accurate, despite our general hot dog purity skepticism), where have these non-kosher practicing plaintiffs been damaged? Certainly, a 75 percent kosher hot dog must be better than any other hot dog. When it comes to hot dogs, standards are low, anyway, right?

We imagine the plaintiffs are claiming that they paid a premium for the kosher hot dogs. Even if they did, let the plaintiffs tour any other company’s hot dog making plants and they will see that they still got a bargain.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

Coffee: The Next Great Humanitarian


We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System -  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.


 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

Steak Dinner In Florida Turns Into Acid Trip

When you buy steaks at Wal-Mart, you expect Grade A quality beef.  A Florida family, however, claims the steaks they purchased weren’t exactly worthy of Gordon Ramsey’s kitchen.  According to a report from The Smoking Gun, Ronnie Morales and Jessica Rosado, Morales’ 9-month pregnant girlfriend, along with Rosado’s two children, were hospitalized after allegedly consuming LSD-laced bottom round steak purchased from a Florida Wal-Mart.  After eating dinner, Morales allegedly became violently ill.  Rosado drove him to the hospital where she, too, became ill, forcing her to be admitted to the Women’s Hospital, where physicians induced labor.  Shortly thereafter, Rosado’s children allegedly began hallucinating and fell ill.  All have now been released from the hospital.  The report is silent as to whether the family will demand a steak dinner anytime soon.

An incident of this type is obviously traumatic, especially when a pregnant woman is involved.   At this point, it is too early to tell who is to blame.  Tampa Police Chief Jane Castor has said that there was “no indication” of any involvement by Morales or Rosado.  So, if not them, then who?  A neighbor?  A friend?  Wal-Mart?  The packing house?  Could it just have been an LSD-addicted cow?  These questions are yet to be determined.

Certainly, this Florida Wal-Mart will be forced to attempt to clear its name.  Despite the police’s assertion the there was “no indication” that the victims were involved, Wal-Mart would be wise to do more investigation.  We are by no means experts in LSD, but we do find it suspicious that the effects of LSD can be so severe after the drug has been exposed to heat.  Moreover, we also find it interesting that those effects were violent illness for the adults rather than hallucinations.  Something sounds suspicious. There are obviously more questions than answers at this stage.  We don’t know who, what, where, when, or how this family ingested LSD.  But, certainly it couldn’t have been from a high quality Wal-Mart steak.

Toothpaste Brand Loyalty Fails To Deliver Girlfriend, User Of Same Sues

As loyal readers of Abnormal Use, you know it is no surprise that product manufacturers often get drug into court over baseless allegations.  A new suit against Unilever Nigeria Limited, however, takes things to a whole new level.  According to an Emirates 24/7 report, a 26-year old Nigerian man has sued Unilever, claiming that the company’s Close-Up toothpaste brand failed to score him a girlfriend.  Apparently, the man began using the toothpaste seven years ago after watching Close-Up television commercials depicting women being attracted to the Close-Up-scented breath of men.  Despite extended brand loyalty, the man claims:

No girl ever agreed to even go out for a tea or coffee with me, even though I’m sure they could smell my breath. I always brush my teeth with so much close up gel to make sure the girls get turned on by my fresh breath as they usually show on TV.

The man has submitted seven years of toothpaste tubes into the court as evidence.

We here at Abnormal Use feel for the guy.  We really do.  It was not too long ago that we, too, could have used some help with the ladies.  Nonetheless, as much as we may have wanted that Axe body spray to work like a magnet, we didn’t really expect it to camouflage our less desirable qualities. Sometimes, advertising content is grossly over-exaggerated.  Did those new Calloway irons take 10 strokes off of our handicap?  Unfortunately, we were disappointed yet again.  Aggravation and disappointment, however, provide us with no legal basis for relief. We have not seen the specific Close-Up commercials at issue in this case.  Unless they stated something like, “Guaranteed to get you a girlfriend regardless of your laundry list of unattractive qualities,” we doubt Unilever breached any implied contract or engaged in deceptive practices.  Do people like fresh breath?  Sure.  Can it help you get a date? It’s better than the alternative.

Diseased Pets: Who Are We to Blame ?

Buying a pet for your child is a rite of passage into parenthood.  Whether it is a golden retriever or a goldfish, the pet is bound to cause at least some problems at the house.  Thankfully, most of the problems can be remedied with a little carpet cleaner or a toilet flush.  But, what happens when those nominal pet problems turn into problems for the children themselves?  What if the new pet comes packaged with a communicable disease which infects the child?  According to a new lawsuit out of California, you blame the pet store. According to an AP report, the family of a 10-year old boy has filed suit against Petco after their son died allegedly as a result of a bacterial infection he contracted from his pet rat.  The boy’s grandmother purchased the male rat on May 27, 2013, to serve as a companion to the boy’s female rat.  On June 11, the boy developed severe abdominal pain and died later that night.  The cause of death was determined to be an infection commonly known as rat-bite fever caused by exposure to an infected rat.  The Center for Disease Control has tested the rat to determine whether it was infected; however, those results have not been made available.  The lawsuit alleges that Petco was negligent in failing to detect the disease and in failing to adequately warn about the potential risks.

This is obviously a tragic accident, but it is not one without questions regarding liability.  First, it remains to be seen whether the rat was infected at the time of purchase.   We here at Abnormal Use do not pretend to be experts on rat infections, so we will refrain from speculation.  Nonetheless, this question will be pertinent to the litigation. Second, what is the culpability of the seller of a pet?  If the seller was an individual rat breeder, rather than a national retail chain, would this matter be handled differently?  It is not uncommon to obtain a pet and discover later that it is stricken with a health condition.  As is the case with humans, pets unfortunately get diseases.  The risk is inherent with the purchase of any pet.  The basis of this suit, however, is not that the rat had a disease, but, rather, that the family wouldn’t have purchased it had they known.

At this point, we do not know what steps Petco took to inform these buyers.  We do not know if the rats were tested.  We do know, however, that Petco actually warns customers online and through fliers in its stores that all rats are potential carriers of the infection.  Petco also warns that children under the age of 5 and people with weakened immune systems should “consider not having a pet.”  It is unclear whether the family failed to see these warnings or whether they did but consider them to be inadequate.  If the family did see the warnings, then it seems apparent that every rat was at risk.

Regardless of what steps Petco took, it should have been known that rats are carriers of disease.  Everyone hears of the horrors of the bubonic plague at some point in their lives after all.

Electronic Shelf-Life: Technologically Short or Manufacturer Conspiracy?

Here at Abnormal Use, we love electronics more than a pitcher of water at a chili pepper eating contest. That being said, there is nothing we hate more than learning our brand new electronics are outdated just a few short months after we open the box. How can we be expected to cope with an iPhone 5, knowing that others are using an iPhone 5s? It’s unfathomable. Nonetheless, we would never want to stand in the way of progress. Companies shouldn’t stop developing new technology – just slow down a bit after we purchase new things. But what if companies are intentionally selling obsolete products? That’s just what has been alleged in a new lawsuit.

Top Class Actions reports that a Wisconsin resident filed a class action against LG Electronics alleging that the company’s Blu-ray disc players were packaged with software that expired after a certain date, leaving the players unable to play discs released after the player’s purchase date. The complaint alleges that LG, Hitachi-LG Data Storage, and had a “planned obsolescence scheme,” conspiring to make the software obsolete. The Complaint states:

By bundling obsolete software with their [Blu-ray disc] players, defendants forced consumers to buy software upgrades, or to pay money or search for alternative software, and to incur installation hassle, computer damages, and other losses, in order to make reasonable use of the purchase.

By filing suit, the man seeks to represent all consumers nationwide who purchased LG, LGUS, and/or HLDS Blu-ray disc players bundled with discontinued CyberLink software from Feb. 8, 2008 to the present.

This type of suit is nothing new. We previously wrote about a similar suit against Apple regarding the power button on the iPhone 4. If there really is some “conspiracy of obsolescence,” then maybe this suit has legs. Without knowing all the facts, our hunch is that this is another case of technology advancing faster than the shelf-life of electronics. Unfortunately, much software and electronic devices are “obsolete” the moment they hit the shelves. Perhaps, LG can do more in the way of post-purchase software upgrades. However, based on the pleadings, it doesn’t appear that would completely satisfy the proposed class.

Again, we understand the frustration. We also understand, however, that all products age out eventually. Unfortunately, electronics are just ahead of the curve.

The suit is captioned Martin v. LG Electronics USA, Inc., et al., No. 3:15-cv-00083 (W.D. Wi. Feb. 8, 2014).

Liability for the Snow: Who is Responsible?

Last week, our Gallivan, White & Boyd offices were trapped in the middle of a Southern Snowpocalypse, so we here at Abnormal Use were able to spend a few days enjoying the snow with our families.  We partook in the customary activities of sledding, building snowmen, and throwing snowballs.  We also observed others engaging in not-so-standard activities like pulling kayaks across snow-packed roads with golf carts.  As lawyers, we naturally started thinking about the potential liability for any injuries to said snow kayakers.  Beyond the operator of the golf cart, it is hard to identify any other obvious potential tortfeasors.  But, what about the Homeowners Association?  Could it be held liable for permitting such activities on its roads during the wrath of Mother Nature?  Sounds absurd, we know.  But, what duty should an entity have to warn of the dangers of weather?

Last week, in Fleury v. IntraWest Winter Park Operations, the Colorado Court of Appeals held that a Colorado ski resort was protected from such liability.  According to CBS-Denver, a man was killed by an avalanche while skiing at the Winter Park ski resort back in 2012.  On the morning of the man’s death, the Colorado Avalanche Information Center issues a warning that the chance of avalanche was high due to high winds and heavy snow.   The man’s widow sued IntraWest, the owner and developer of the resort, claiming that the ski area should have been roped off and her husband not allowed to ski due to the warning.  The trial court dimissed the case on the grounds that ski resorts are shielded from liability for accidents caused by avalanches.  The Court of Appeals affirmed, holding that the avalanche was caused by new snowfall, weak and unstable snowpack, and a steep slope – all of which are covered by the state law.

This case is obviously one in which the state legislature had already addressed the issue.  Even if it had not, we believe the result should be the same.  This isn’t a case in which the avalanche was caused by some act of the resort.  The result may be different if the resort was blasting nearby to pave the way for a new hotel. This case is about an act of weather.  Mother Nature plays havoc on us all and is often unpredictable.  We should all appreciate the unpredicatable nature of the weather when we partake in any activity.  The plaintiff in this matter claims that this accident could have been avoided had the resort listened to the Colorado Avalanche Information Center warning and closed off the ski area.  Interestingly, however, those claims are misplaced.  The Information Center only warned of the possibility of avalanches and actually urged skiiers to “enjoy the powder in the safety of the ski area.”

Clearly, a skiier trapped in an avalanche is not comparable to a kayak pulled behind a golf cart.  One involves a standard activity.  The other involves a couple of individuals adding some Southern flare to customary activities.  Nonetheless, Mother Nature treats us all the same.  And, so should the liability.