TV Review: NBC’s “Bad Judge,” Starring Kate Walsh

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Tonight, NBC airs the premiere episode of “Bad Judge,” a new legally themed sitcom starring television and film veteran Kate Walsh as a municipal court judge with a chaotic personal life. Created by Anne Heche and produced by Adam McKay and Will Ferrell, “Bad Judge” looks and feels like the legal version of the similarly named Cameron Diaz movie, “Bad Teacher.” As you might imagine, “Bad Judge” does not go out of its way to accurately depict the legal profession or the daily working lives of judges. Nonetheless, “Bad Judge” is certainly amusing if not believable once the aspirations for legal realism are set aside.  Warning: Spoilers abound in the review below.

Walsh plays Rebecca Wright, whose life as a hard living, sexually charged woman intermingles with her career as a criminal court judge.  Aided by stashed away liquor and sexual flings with the State’s expert witness in her chambers, she is somehow able to manage her judicial responsibilities despite her battles with hangovers and pregnancy scares.  Through unorthodox sentencing methods (i.e. in the pilot episode, she orders a defendant to enroll in a college feminism class and to attend wearing an “I Am a Convicted Bigamist” t-shirt), she takes seriously the idea that the criminal code is a mechanism of rehabilitation rather than punishment.  Despite the flaws in her personal life, Wright goes out of her way to aid the families of defendants while their loved ones are locked away.

At least in the first two episodes, the focus is exclusively on Wright and set primarily within the courthouse.  Rounding out the cast are John Ducey as prosecutor Tom Barlow, Mather Zickel as Wright’s aforementioned expert witness love interest Dr. Gary Boyd, and Tone Bell as the awkwardly ever present bailiff Tedward Mulray.

The pilot primarily sets the stage for Wright’s life and career path.  While fighting a hangover and after making a pit stop for a pregnancy test, Wright presides over a bail hearing for an alleged bigamist.  Announced as one of the most prominent psychologists in all of California, Dr. Boyd testifies that the bigamist is a flight risk and, thus, Wright denies bail.  Shortly thereafter, Wright and Boyd retire to chambers to continue what is apparently an on-again, off-again sexual relationship.  Wright then leaves the courthouse to serve as “counsel” for Robby Shoemaker (Theodore Barnes), the child of persons previously sentenced by Wright, as he awaits punishment at his elementary school for drawing derogatory pictures of his teacher.  Later, she returns to the courthouse in order to convict and sentence the aforementioned bigamist.

The second episode, “Meteor Shower,” is much of the same.  Rather than stopping for a pregnancy test, Wright’s pilgrimage to the courthouse is interrupted in order for her to place a fireman’s axe into the front tire of an angry motorist’s convertible.  Wright presides over the “trial” of a teen actress and welcomes the paparazzi with a double-fisted, middle finger salute.  After getting stood up by Dr. Boyd, Wright gets a little too high and has to call EMS after eating two pot brownies stolen from the evidence locker.  Not to be deterred, Wright gets back on her feet, returns to the courthouse, and sentences the teen actress to four weeks of seclusion at a convent so that she can “find herself.”

From a legal perspective, “Bad Judge” has it all wrong.  The show is so legally inaccurate, one has to wonder if the writers intentionally made it so.  From the timing of the legal proceedings to the courtroom candor and unethical conduct of Wright and the attorneys alike, it seems implausible that the writers engaged in any research whatsoever.  If “Bad Judge” is the product of legal research, then that research is the equivalent of writing a doctoral thesis with Wikipedia as a primary source.

Giving them the benefit of the doubt, we will assume that the writers intentionally made no attempt to create an accurate portrayal of the legal system.  And, that is okay.  There is nothing worse than a show that contains just enough realism to make it believable while butchering key components and leaving the general public with absurd ideas about the legal system.  No one will come away from watching “Bad Judge” thinking they have gained some insight into the inner workings of a courtroom.  Clearly, that is not the purpose of the show.  ”Bad Judge” is a comedy centered around Wright’s disheveled life.  While the character is a polar opposite of her previous roles in “Grey’s Anatomy” and “Private Practice,” Walsh plays the role brilliantly. And, in this, “Bad Judge” certainly delivers.

The pilot episode airs tonight at 9:00 EST on NBC.

Frozen: Not Just Another Disney Princess Story?

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A princess born with cryokinetic powers, locked away from the outside world for years, unleashes a deep freeze on the community when she is unveiled as queen.  If you thought this was the CliffsNotes plot summary of Disney’s Frozen, you would be partially mistaken.  Apparently, it is also the tale of a New Jersey woman.  According to a report from the New York Daily News, Isabella Tanikumi a/k/a Amy Gonzalez, has filed suit against Disney in a New Jersey federal court alleging that the entertainment giant lifted the story straight from her life. Specifically, Tanikumi alleges that the makers of Frozen stole the story, characters, plots and subplots from her two memoirs, Living My Truth and Yearnings of the Heart, which chronicle her upbringing in the Andean mountains of Peru.  Disney, however, has previously claimed that Frozen is loosely based on Hans Christian Andersen’s 1844 fairy tale “The Snow Queen.” Tanikumi obviously isn’t buying it, as she is seeking $250 million in damages.

We here at Abnormal Use have admittedly never read either of Tanikumi’s memoirs.  Nonetheless, our guess is that this lawsuit falls more into the realm of absurd than it does Queen v. Vanilla Ice.  Anyone who has viewed the film would certainly question how the story of an ice princess and a talking snowman could possibly have ripped off a Peruvian memoir.  As reported by NJ.com, the suit alleges the following as parallels between the films:

— Both the memoirs and “Frozen” feature two sisters, one of whom causes the other to be injured and then hides herself away because she feels shame.

— Both live in a village or town at the foot of snow-covered mountains, the suit alleges.

— The sisters are brought closer by a terrible accident — an earthquake in the memoirs and a storm in “Frozen.”

— The above-mentioned accidents result in the deaths of loved ones.

— In the memoirs, one of the sisters has suitors named Hans and Cristoff and in “Frozen” Anna develops romantic attachments to men named Hans and Kristoff.

These allegations appear to be more coincidental rather than deliberate attempt at a rip-off.  Even the most specific example, the names of the male characters, loses traction when you consider the adaptation from Hans Christian Anderson and the film’s Scandinavian setting.  While Disney is obviously a huge outfit with tons of resources, we highly doubt that its writers were scouring through self-published memoirs for their next big idea. Looking into our crystal ball, our guess is that this lawsuit will melt quicker than Olaf on a summer’s beach. Tanikumi may finally have someone purchase her memoirs off of Amazon due to the publicity, but she won’t see a dime from Disney.  And, then, when all is said and done, Tanikumi releases a Peruvian version of “Let It Go” only to be sued by Disney for copyright infringement.  We can only dream.

CPSC Continues The Flogging of Desktop Magnets

Over the last several years, we here at Abnormal Use have documented the controversial saga of the Consumer Product Safety Commission (“CPSC”) and its battle against the manufacturers of desktop magnets.  The witch hunt against those spherical magnets has now taken a new turn, and as chroniclers of this epic tale, we must pause to take note. Last week, the CPSC voted to pass a final rule addressing the alleged dangers of desktop magnets.  You can read the 207-page rule here.  Essentially, the rule establishes a new standard: If a magnet set contains a magnet that fits within the CPSC’s small parts cylinder, each magnet in the magnet set must have a flux index of 50 kG2 mm2 or less.  Magnetic flux is the average magnetic field times the perpendicular area that it penetrates.  In other words, flux is how “strong” the magnet is.  With the new CPSC ruling, magnet sets with small magnets must have less flux.  Sounds good, we suppose.

We don’t have any problems with the CPSC attempting to protect consumers.  After all, it is its job.  We are shocked, however, that desktop magnets have been the Ace of Spades on the CPSC’s hit list for the last several years.  The CPSC has apparently received reports of 1 death and 2,900 incidents of magnet ingestion.  Certainly not numbers to ignore, but cause for a public spectacle of this magnitude? Presumably, far more dangerous products have entered the stream of commerce without catching the gaze of the CPSC.  Maybe the CPSC really did see desktop magnets as a matter of upmost importance.  Or, maybe it was Buckyballs CEO Mark Zucker’s public mockery of the CPSC’s logic that fueled the fire.  We will let you be the judge. Whatever the case, we urge you to read the CPSC’s 207-page order the next time you are looking for a little light reading.  It traces the CPSC’s plight and gives you the rare opportunity to probe the motives of a powerful federal agency.  Of particular note, play close attention to what the CPSC says about product warnings (you know, the very thing Zucker mocked).  Specifically, the CPSC states:

A possible alternative to the rule would be to require warnings with or on magnet sets. As discussed in the NPR preamble and in response to comments set forth in section E of this preamble, it is unlikely that warnings on the packages of magnet sets would significantly reduce the ingestion-related injuries caused by high-powered magnets. Safety and warnings literature consistently identifies warnings as a less effective hazard- control measure than eliminating the hazard through design or guarding the consumer from a hazard. Warnings do not prevent consumer exposure to the hazard but rely on persuading consumers to alter their behavior in some way to avoid the hazard. . . .

Even if warnings could effectively communicate the ingestion hazard, the consequences of ingesting magnets, and appropriate hazard-avoidance measures, warnings still may not be effective if consumers do not concur with the content of the warning. . . .

So, let’s get this straight.  According to the CPSC, warnings don’t work.  Even if they could, the consumer may not agree with the warned-about hazard.  As such, we should just take an alleged hazardous product out of the marketplace rather than use them.  Huh?  Tell that to all of those product manufacturers who have been found liable in civil suits due to a failure to warn.  The modicum of the CPSC’s logic is that even the best warnings may be ignored by consumers.  We get that.  But, it ignores the whole concept of common sense and self-policing.  It is true that young children may be unable to read and appreciate a product warning, but where do the parents come into play?  Don’t have Buckyballs at the house if you have small children.  Problem solved.  No reason to resort to the multi-year draconian campaign.

While this latest development is a final ruling of the CPSC, we doubt that this is the last chapter in the saga. Even when new desktop magnets emerge in compliance with the rule, the CPSC will undoubtedly find something to complain about.  And, we will be right here to write about it.

Lessons Learned in Small Claims Court – Where Real Lawyers are Made

We here at Abnormal Use handle a variety of cases, big and small. While it may be the “bet the company” cases that grab the headlines, we have found that small claims court litigation creates the most memorable experiences. With no discovery, no court is less predictable. As you might recall, we have previously offered some helpful observations during our tireless days in the world of small claims. Always at your service, we would like to share a few more of those maxims with you.

1. Check your motion practice at the door. No explanation needed.

2. When the court begins explaining legal principles to a pro se litigant, just go with the flow. If the court addresses the litigant directly, things are going in your favor. Don’t mess it up.

3. Don’t make light of the experience. While some may argue that the appellate level is where “real” lawyering takes place, those people clearly have never stepped foot in a small claims court. The informality of the process can certainly be challenging, but in no other court can a lawyer learn to think on his or her feet in quite such a fashion. Often times, we get so caught up in the rigid rules of litigation that we lose sight of those skills that drove us into the legal field in the first place – creativity, logical thinking, analytics, public speaking. In small claims court, those core skills are your best friend.

Regardless of your number of years of practice, cherish each of your experience in small claims court. At the end of your career, you will find that those experiences are the ones that developed your skills as a lawyer. And, gave you the stories you will remember.

Iowa Federal Court Issues Sanctions For Unnecessary Deposition Objections

One of the most difficult deposition and trial skills to learn as a young lawyer is the art of the objection. While some may posit the old maxim, “You’ll know it when you hear it,” in practice, knowing the proper time to object to opposing counsel’s question is much more difficult. Over time, every lawyer develops his or her own method of practice. Some lawyers can sit all day through a tiresome deposition without the hint of an objection. Others choose to object, usually to the form of the question, every time opposing counsel opens his or her mouth. Neither approach is sound as not every question is perfect or objectionable. Nonetheless, many lawyers seem to use the objection as a means to prove one’s worth.

Recently, a lawyer appearing before U.S. District Court Judge Mark Bennett in the Northern District of Iowa learned the perils of abusing the objection. In fact, the lawyer in question was sanctioned in a most unusual way. During trial in the matter of Security National Bank v. Abbott Laboratories, No. 11-cv-4017 (N.D. Iowa 2014), a product liability case arising out of an allegedly defective infant formula, Judge Bennett issued a sua sponte order for defense counsel to show cause as to why she should not be sanctioned for the “serious pattern of obstructive conduct” she displayed in defending depositions. Specifically, Judge Bennett questioned the lawyer’s use of hundreds of form objections with no apparent basis. Following trial, a supplemental order was entered, directing counsel to address three issues: 1) the excessive use of “form” objections; 2) numerous attempts to coach witnesses via objection; and 3) ubiquitous interruptions and attempts to clarify questions posed by opposing counsel. In reviewing the depositions at issue, Judge Bennett found that the lawyer’s form objections – often with no stated basis – were found on 50 percent of the transcript pages. While he did not favor form objections with no stated basis, it was the result of the objections – witness coaching and excessive interruption – that drew Judge Bennett’s ire. The objections were said to be used to induce clarification from the deponent, and in many instances, actually coached the witness to give a particular, substantive answer. The attorney objected so many times that her name was found, on average, three times per page of deposition transcript. Based on the record, Judge Bennett found that:

By interposing many unnecessary comments, clarifications, and objections, Counsel impeded, delayed, and frustrated the fair examination of witnesses during the depositions Counsel defended.

Rather than fine the lawyer, Judge Nelson ordered her to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court. Now, there’s a video sure to be a must-see for all young lawyers. This opinion shouldn’t scare all who may appear in an Iowa federal court in the near future. Judge Bennett was quick to note that a handful of improper objections or comments wouldn’t lead to this type of judicial intervention. However, lawyers should think twice before talking more than their clients at their depositions. If an objection really needs to be made, then you will in fact “know it when you hear it.” Otherwise, the objection is too often just filler.

Abnormal Interviews: Trial By Jury and Mistrial Movie Director Heywood Gould

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Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and makers of legal-themed pop culture. For the latest installment, we turn to Heywood Gould, director and co-writer of the film Trial by Jury, which was released way, way back in 1994. Gould is well known in Hollywood, having directed Mistrial and written Cocktail. Any film depicting jury tampering at the hands of a mob boss captivates our attention. Further, today marks the 20th anniversary of the film’s release to theaters on September 9, 1994. Nothing slips past us. To commemorate this special event, we requested that Mr. Gould agree to an interview with us about the making of the film, and he was kind enough to grant that request. Without further ado, the interview is as follows.

NICK FARR: Looking back 20 years now, what are your thoughts on Trial By Jury and how it was received as a legal drama?

HEYWOOD GOULD: Well, I mean, it was received harshly. And I think the main reason was because of the premise of the movie being that a racketeer can buy himself or can buy a jury and corrupt a jury. People did not want to think that could happen . . . The movie is based on a real life occurrence in which [John] Gotti corrupted a jury in one of his jury trials which led to a mistrial. That’s how he got the name “Teflon Don.” One of the reasons in this case was because he had corrupted the jury. So people don’t want to entertain the idea that this can happen. So there was a lot of disbelief expressed that this could ever happen here and so forth and so on. The movie itself – the actual movie got a great response. But people felt – people were upset. They were disturbed by the idea that this could happen.

NF: What type of feedback have you received from lawyers, specifically, on how the film has resonated with them?

HG: Well, you know, that’s interesting because a lot of people didn’t know that I knew – it wasn’t a secret – but they didn’t know that I knew that this had happened during the Gotti trial. And so, I’ve gotten a lot of response from lawyers who say, well you really – how do you know the way the system really operates? This was more in response and reaction to the idea that the DA would use a criminal to testify on his behalf and that the DA would kind of trap another criminal to testify. They said, “How do you know how well the system works?” “This is how the system works,” they said, and “How do you know that?” And I’ve been a reporter, and I’ve covered a lot of trials, and I don’t know, it kind of comes by osmosis in a way. But they did react saying that I demonstrated a lot of inside knowledge of the way these trials really work.

NF: What about any kind of feedback from anybody that has ever experienced jury duty and how the film resonates from their own experience?

HG: Well, a lot of people – and I’ve been on jury duty twice – a lot of people could relate to the dynamics and the way some people take over a jury room and the way some people will get stubborn. A lot of people responded that this is the kind of experience that they had had.

NF: You co-wrote and directed the film. Can you tell us about that transition from putting pen to paper and then making it come to life on screen?

HG: Well, you kick the writer off the set. That’s it, get out of here. Stop arguing if it doesn’t work. We’re going to try to streamline the movie, and we’re going to be more responsive to the actors’ portrayal and what they bring to it and let them contribute because it’s their movie, as well, whether you like it or not. You kind of become – you put another hat on, and you kick the writer’s hat off, and you look at the script as objectively as you can. Not as something that you wrote.

NF: What efforts were taken to adequately depict the criminal process on set?

HG: I had a friend of mine who’s a lawyer. Other than that, I covered trials as a reporter for the New York Post. . . .  I tried to be very scrupulous about the cross-examination technique of the lawyers and the general technique of a criminal trial [and] keep that as correct as possible so that it would reflect a real trial.

NF: What do you think makes a realistic courtroom as a good backdrop as a drama?

HG: Anybody who’s ever attended a trial, it’s the highest drama in the world. It’s the most dramatic kind of public spectacle that you can think of, and it covers really every aspect of human life. . . . It’s high drama. One of my favorite things to do as a reporter was to cover trials, and what I really liked to do the best when I didn’t have a particular trial to cover was just wander through the courts and just wander into a courtroom and see what was going on that day in that courtroom. . . . I’ve never been to a boring trial or a trial that wasn’t extremely dramatic to me because of what’s at stake.

NF: This movie came out at an interesting time. One of the most famous criminal trials at least in recent memory was the O.J. Simpson trial. That was obviously very well publicized. This movie came out a couple of months after the famous white Bronco chase and then maybe about a year before his trial. Did you see any following of people going back and re-watching a movie like this in the wake of this general population interest in the criminal process?

HG: Yeah, I did, and I also felt a little bit – and I hate to say this – I don’t mean to say it but it did happen – a little bit of vindication for some people when they saw how shaky the justice system could be. Because it was pretty shaky in that trial, that’s for sure. And people say, “Well gosh, maybe you were closer to the truth than we thought.” And I said, “Yeah, it can happen.” I said, “Yeah, I got a lot of response – positive responses for the picture to stick around all these years.” People are still watching it.

NF: Trial By Jury’s protagonist, Valerie (Joanne Whalley), she gets summoned for jury duty, decides to fulfill her civic duty, and then finds herself getting blackmailed by the mob to return a not guilty verdict in the trial of the mob boss. So after going through this type of experience, how do you think Valerie would feel about the two schools of thought we always hear about jury duty: the first one is that it’s a civic responsibility and the second one that no one should be judged by twelve people who aren’t smart enough to get out of jury duty?

HG: Well, first of all, it is your civic duty, and I just completed a trial as a juror – my second time – and, of course, I don’t want to get out of it. I mean, I hope – this trial ran for a little bit more than I would have liked, but the truth is that I usually found juries make very good decisions. At least I can always say that the jury always makes the decision that I agree with so that might not be the best one, but I found that juries take the job very seriously and that they deliberate. The jury I was on was out for three days arguing about what defendants should get an equal – a sentence – because one had done more than the other. Stuff like that. I’m a big fan of the truth. . . . In New York state, I don’t know what the other rules are, but it’s pretty hard to get out of it. They promise you that it’ll be a short trial, and they show you a little video beforehand, and you kinda get a little inspired, and you want to go. People on my jury – they were very much involved with their lives, and they were on their cell phones before court convened. But once the trial started, they were into it. As a matter of fact one guy, a young guy, after all this yelling – we had some serious disputes in our jury – he got up and said, “Wow, this is great, this is the way the system works.”

NF: Why didn’t Valerie do more to let the judge or the district attorney, Daniel Graham (Gabriel Byrne), know what was going on?

HG: Why didn’t she? She’s frightened. . . . She can’t be convinced that the system will protect her. Somehow, she would cooperate, she would not be protected by the system. And that her kid will be killed or she’ll be killed. She believes this. And there was – and probably still is – there was a time when people thought, actually more so than before, that the government can’t protect them and that the system can’t protect them.

NF: The DA had a difficult task ahead of him, trying to prosecute a mob boss under these circumstances. What does the film say about kind of a job of a prosecutor in criminal matters?

HG: Well, you usually have to use a crook to catch a crook. You have to convince the jury that that’s a legitimate thing to do. And in order to convince the jury, your witness, although your witness might be a criminal on trial for himself, has to be plausible. You have to make his testimony plausible. That’s a real challenge. If you’re going to have a tainted witness, you have to somehow make that witness seem credible to the jury. That’s hard.

NF: What does the film say about the constitutional right to a trial by jury?

HG: I think the greatest document we have is our Constitution. I think that’s what makes us unique and even the protections that are given to the bad guy in this movie are necessary. I think people who have drawn other conclusions, by the way – interesting question that you ask – but a lot of people have said, “Are you saying that the Constitution gives too much protection to people?” and I’m saying, “Not if you’re on trial.” I think it’s – you’re going to have an occasional miscarriage of judgment that you have in this movie. That can’t be helped, but overall, you’re lucky to have a constitution to protect you.

NF: What are your thoughts on the comparisons between Trial By Jury and The Juror which was released two years later in 1996?

HG: That has continued to be a mystery to me. I don’t know how it happened or what happened. A lot of people have told me that one of the explanations is that people who had our script didn’t think the movie was going to be made so they felt free to use certain parts of it for their movie. I don’t know if that’s true or not. The Juror is almost a carbon copy with a couple of little variations of our movie. I don’t know how that came about. I really don’t. I want to be fair to the people. I want to say that they also thought they had the same idea that we did when they saw how the jury had been manipulated in the Gotti case. I don’t know how that happened.

NF: We are a bit premature in that Mistrial’s 20 year anniversary won’t take place until 2016. But I have to ask, what was the inspiration for the story and the frustrations of having good evidence and not being able to get it introduced?

HG: This was kind of a “what if” kinda situation. I felt that many times as a reporter watching trials guys have gotten off because of technicalities or because of a good lawyer or legal technicalities. I just tried to imagine what it would be like for a cop whose case was going up in smoke . . . I just tried to put myself in the place of a cop whose life has been destroyed by a series of events which he didn’t have that much control over. What would happen to him?

BONUS QUESTION: Looking back, can you think of a better job than that of Brian Flanagan (Tom Cruise) at the tiki bar in Jamaica from Cocktail?

HG: No, I can’t. I had that job for one year myself. I was a bartender. I used to bartend for eleven years before the movie. That’s pretty much my experience as a bartender. I worked – well I won’t tell you the name of the island – but I worked at a place very much like the Tiki Bar, and it was a fun time I have to say. It was great. It’s the greatest job ever. And you have some money in the bank as opposed to – when Brian Flanagan is 50 years old, well he’d get fired, most of my friends who were bartenders up here in New York got to be 50, 55 they were in bad shape in any way you can think of.

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BIOGRAPHY: Born in the Bronx, New York, Heywood Gould is a screenwriter, journalist, novelist, and film director. He penned the screenplays for many films including Cocktail and directed such films as One Good Cop, Trial by Jury, Mistrial and Double Bang.

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Massachusetts Consumers Allegedly Forgot the Meaning of Coke

To us here at Abnormal Use, Coca-Cola is a lot of things. A delicious beverage on a summer afternoon. An entertaining museum in downtown Atlanta. A title sponsor of the longest race in NASCAR. While Coca-Cola may be a lot of great things, we never considered it particularly “healthy” or “natural.” A purported class of Coke consumers in Massachusetts, however, apparently felt otherwise. Accordingly, they have filed a new suit in federal court alleging that they were duped by Coca-Cola into believing that the product was, in fact, healthy.

According to the complaint, Coca-Cola allegedly found itself facing decreased market share due to increasing consumer preference for beverages without artificial flavoring or chemical preservatives. Rather than alter its product to satisfy consumer demand, Coca-Cola, the consumers allege, embarked on a campaign to intentionally deceive them into believing that Coke is natural and healthy. In addition, the consumers allege that Coca-Cola misrepresented its history by claiming the beverage has not deviated from its original 1886 formula. Because the product is purportedly misbranded, the consumers allege that the product that they purchased has zero value. Had the consumers known about the misrepresentations, they allegedly would not have purchased the product. The suit is captioned Marino v. Coca-Cola Co., 1:14-cv-13446 (D. Mass.) and contains causes of action for breach of warranties, negligent misrepresentation, negligence, and violations of federal and state food labeling laws.

While we are huge proponents of Coca-Cola, we do not pretend to know anything about its ingredients nor do we care. We just know that Coke is delicious. Certainly, no product should be mislabeled whether intentionally or unintentionally. Even if mislabeled, we question whether any of these consumers have actually been damaged. When we first heard of this lawsuit, we thought it must have been the dubious work of The Onion. Who really purchases Coke under the guise that it is healthy? It has been common knowledge for years that sodas, Coke included, are not health foods. Unless these consumers are ostriches with their heads in the sand, we assume they purchased Cokes with the same knowledge as the rest of us.

Salon Allegedly Offers Extra Hospitality – A Pot Cookie – With Its Hospitality Trays

Hospitality food tray skeptics should pay attention to this new California lawsuit. According to a report from CBS Los Angeles, 72-year old Jo Ann Nickerson has filed suit in the Los Angeles Superior Court against a San Fernando Valley hair salon after eating a cookie allegedly laced with marijuana. Nickerson alleges that she ate a cookie from a hospitality tray left for patrons. Shortly thereafter, she allegedly developed hallucinations, rapid heartbeat, confusion, disorientation, light-headedness, dizziness, blurred vision, tingling, headaches, and nausea. Blood tests allegedly found THC in Nickerson’s system. The suit asserts claims for negligence, strict product liability, and negligent infliction of emotional distress.

Not much is known at this time apart from that stated in the pleadings. Nonetheless, we here at Abnormal Use have plenty of questions. For starters, how is Nickerson going to prove that she ingested THC from these hospitality cookies? We are suspicious of gratuitous, unsealed food for a variety of reasons, but the possibility of infused drug cookies has never previously occurred to us. (Of course, we’re in the Carolinas, not California.).  Was Nickerson’s cookie the only pot-cookie in the batch? If not, wouldn’t others have reported sharing similar symptoms? If it was the only one, how did it get there? It seems unlikely that a fellow patron would have a pot-cookie in his/her pocket that could easily disguise itself amongst the other cookies already placed upon the hospitality tray. What the pot cookie preserved? Is there a spoliation of evidence issue? It will be interesting to see how this all unravels.

These marijuana suits become even more intriguing now that marijuana is legal either recreationally or medically in several jurisdictions. If marijuana were legal in California for recreational purposes, would this lawsuit have the same punch, if true? Certainly, the effects were unwanted as Nickerson didn’t choose to ingest THC. In fact, she claims to have never smoked marijuana in her 72 years of age. But, do these cases have the potential to morph into something analogous to second hand smoke claims as society becomes more tolerant of marijuana? Or will the long held taboo still affect these cases post-legalization? Today, this thought is nothing more than idle speculation. In the future, who knows?

20 Years of McDonald’s Hot Coffee Case Rhetoric

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Since the birth of Abnormal Use way back in 2010, we have written much about Stella Liebeck and the infamous McDonald’s hot coffee case. There was no conscious plan to focus on this matter, but sometimes, things simply fall into place. When we published our initial post on Susan Saladoff’s “Hot Coffee documentary back on January 24, 2011, and our accompanying Stella Liebeck FAQ file the following day, we did not predict we would revisit the case as often as we ultimately have. However, within just a few months, those posts generated a friendly retort from a popular social justice blog, a shoutout on National Public Radio, and a mention in, of all things, The New York Times. Abnormal Use would never be the same, and as the years have passed, we have attempted to learn as much as we can about the underling facts and procedural history of the case. This week, in recognition of the twentieth anniversary of the hot coffee trial, we here at Abnormal Use are offering you some additional thoughts on the case and its legacy.

What is it about a 20 year old New Mexico jury trial that continues to create so much furor today? Sure, the case has crept into our vernacular through its references in pop culture, but why? It is ludicrous when one thinks about the hundreds, if not thousands, of personal injury cases that are filed each and every day, many of which involve allegedly defective products, yet the one that garners the most attention is the one about a single cup of coffee. Certainly, the initial media coverage of a litigant receiving millions of dollars due to a hot coffee spill created much public buzz. The subsequent propaganda – from supporters and opponents of tort reform alike – infused the case with additional life as each side attempted to spin the case facts in its own favor. As Internet blogs continue to revisit the litigation, nearly every one has an opinion on the case.

One need only visit at the comments section of Abnormal Use as evidence of the passion surrounding the case. In fact, our hot coffee posts continue to garner comments – sometimes many years after the dates of those posts’ initial publication. While the readers of Abnormal Use may not be a perfect representative sample of the general populace, those comments are certainly evidence that the hot coffee case is far from ordinary.

The more surprising component of the case is its polarity. It seems that one cannot now engage in an objective discussion of the case without first declaring one’s self, “Team Liebeck” or “Team McDonald’s” (or, worse, “Team Tort Reform” or “Team Social Justice”). The caustic nature of the debate is worsened by a general lack of public knowledge of the true facts of the case. Additionally, many advocates stress only those “facts” they chooses to hear while ignoring others that don’t fit nicely into their theory of the case (suggesting that all of us will continue to relitigate the case well into the future).

The opinions on the case tend to fall into one of two categories. There are those who stress the liability issues and those who focus on the damages. The talking points for both camps have been rehashed and recycled many, many times (often without reference to the specific motions or testimony in the case). Yet, each camp has its flaws. Those who argue Liebeck’s contributory negligence run the risk of seeming unsympathetic to her rather severe injuries. Conversely, those who focus on those horrific injuries often overlook the fact that damages are only one element of a negligence claim – an element that is not addressed unless it is first shown that the defendant’s conduct was, in fact, negligent. Neither side is necessarily disingenuous; however, they don’t always see the whole picture of the case when focusing on singular components.

In looking back over the past 20 years, what is the real effect of the Liebeck verdict? Other than providing talking points for lawyers and staking a claim in pop culture, not much. People still drink coffee. They still like their coffee to be served piping hot. Restaurants still serve coffee at temperatures within the range served to Liebeck by McDonald’s in New Mexico that fateful day in February of 1992. At the end of the day, Liebeck v. McDonald’s has provided us with a discourse to advocate for certain platforms. This is not to say that the hot coffee case doesn’t remain important after 20 years. But in the end, these days, it’s mostly just rhetoric.

Buckyballs Dies, Fight Against CPSC Continues

Several weeks ago, we here at Abnormal Use lamented the death of Buckyballs, the controversial desktop magnet, after its two year fight with the Consumer Product Safety Commission (“CPSC”). The Buckyballs saga grabbed our attention from the outset after Buckyballs’ CEO Craig Zucker publicly ridiculed the CPSC’s draconian measures. As traditionally harsh critics of the CPSC, we applauded Zucker’s efforts and were saddened when Zucker finally succumbed to the CPSC back in May.

Little did we know, there still remains a ring bearer in the Fellowship of Magnets.

According to a report from Reason.com, Colorado-based Zen Magnets continues to fight against the CPSC over the right to manufacture and distribute spherical magnets. Shihan Qu of Zen Magnets described to Reason his ongoing fight as follows:

I have two very distinct but related motives for continuing this fight.

The first one is obvious. I want to win. I want to keep selling magnets. I want to continue seeing the passion, joy, and inspiration they bring. I want to stay in business. I want to see a victory for magnets.

But number two, I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country.

The single biggest issue that must be challenged, the aspect that makes this a landmark case, is that this is the first time the CPSC is arguing that warnings don’t work, which has incredibly vast policy implications. Putting warnings on this is mostly what the CPSC does. Small parts, choking hazards, etc.

Warnings are a sort of agreement a customer accepts upon use of a product. And by assuming that people cannot follow — by the way, there is still nobody who can confirm even a single Zen Magnet ingestion incident — instructions to keep magnets away from children and mouths, they are assuming the American Population is not capable of deciding for themselves. They are taking your right to consent, and fleecing your freedom to do as you will.

We’re the last line of defense, and if Zen Magnets doesn’t stand up, the CPSC gains a remarkable amount of power from consumers. They show the ability to determine behind their closed walls, what America can and can’t have, despite roaring public opposition. They set the precedence of creating an all-ages, nation-wide ban, with the assumption that an American cannot be “expected” to understand or follow warnings.

We must applaud Zen for continuing the sojourn. We are particularly intrigued by the company’s thoughts on product warnings. While we do not believe that a warning label should grant a license to sell any product, we, too, have often questioned why the CPSC had problems with these magnets despite what appears to be appropriate warnings. In this case, the CPSC seems to belittle our sense of free will and decision-making at the expense of these companies. Regulation can serve its purpose, but it shouldn’t deprive us of our own ability to self-govern. Unfortunately, we fear Zen will ultimately share a similar fate with Buckyballs. Nonetheless, we applaud its efforts.