Plaintiff Strikes Gold With New Adulterated Food Case

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

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

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

The Curious Case of the Renaissance Fair Juggler

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

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

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

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

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

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

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

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

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

CPSC Reacts to Tip-Over Hazard Phenomenon


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

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

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

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

Competitor v. Competitor: Deceptive Packaging Reaches New Level

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

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

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

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

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


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

Social Media Paves New Ground In Contaminated Food Cases

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

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

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

New Suit Alleges IKEA Failed To Warn Of Falling Furniture

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

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

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

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


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

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

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


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

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

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

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

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

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

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

The interaction went a little something like this:

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

CLASS:  We get punished.

ME:  Who punishes you?

CLASS:  The teacher.

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

CLASS: . . .

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

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

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

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

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



Fitbit Faces New Lawsuit Over 67 Minutes of Sleep

As America has become more engulfed in the fitness craze, numerous products aimed at helping consumers with their new found healthy lifestyles have hit the marketplace. One such product is the Fitbit activity tracker, a wearable device that measures data such as steps walked, calories burned, and quality of sleep. Sounds like the perfect product for the health conscious consumer, right? According to a new class action filed in the Northern District of California, not so much.

Florida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised.  According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge.  As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.

Because we here at Abnormal Use have yet to buy into the fitness craze, we regretfully do not own a Fitbit device. If we did, we would expect it to work as advertised. Nonetheless, we do question how any alleged inaccuracies in the sleep-tracking function cause “serious public health concerns.”  We understand that a certain amount of sleep is a necessary component of a healthy lifestyle. However, the Fitbit’s alleged 67-minute misrepresentation as to the amount of sleep hardly seems like it would actually have an effect on one’s health. A person sleeps the amount a person sleeps regardless of how many minutes of sleep Fitbit represents to the person. We are not aware of any representations made by Fitbit that the product will actually make you sleep better or longer. The Fitbit just measures the amount of sleep (albeit allegedly incorrectly). Your sleep is your sleep. No Fitbit needed.

Call us old-fashioned, but is a sleep-tracker even necessary in the first place? People know how they feel when they wake up in the morning.  If you didn’t get enough sleep, you feel tired.  If you got enough sleep, you feel refreshed.  People don’t need a fitness tracker to tell them that.  Of course, they didn’t need to pay an extra $30 for it, either.

Failure to Warn While Sleeping? Apple Targeted Once Again In Adapter Lawsuit.

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.