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.

McDonald’s Hot Coffee Case: Improper Subject of Closing Argument

For better or worse, the infamous Stella Liebeck McDonald’s hot coffee case filtered through our legal system and staked its claim in the mainstream media. Despite the fanfare surrounding that case, few know all the in’s and out’s of the case from either the plaintiff’s or the defendant’s perspective. Perhaps playing on the ignorance of the general populace, supporters of both tort reform and social justice movements have used the case as propaganda to support their causes. We suppose there is no harm done in using the case as a means of persuading the public. But what would happen if the case was used to sway a jury? Looking deep into the legal vault, the Utah Supreme Court gives us its answer to the question.

In Boyle v. Christensen, 251 P.3d 810 (Utah 2011), the plaintiff was injured when struck by a truck while walking in a crosswalk.  After the defendant truck driver admitted liability, the case proceeded to trial on the issue of damages.  During closing arguments, counsel for the defendant responded to the plaintiff’s request for damages as a result of pain and suffering with the following:

Ladies and gentlemen, they want a lot of money for this. A lot of money. What’s been written on the board is called a per diem analysis…. How many days has it been since the accident? How many days for the rest of his life. And how much per day is that worth? That’s what’s been done here. That’s how we get verdicts like in the McDonald’s case with a cup of coffee.

Whoa!  Did that come out of nowhere?  Plaintiff’s counsel sure thought so, immediately objecting to the reference as prejudicial and not in evidence.  The objection was overruled, and the jury returned a verdict of $62,500, about one-seventh of that sought by the plaintiff.  Not satisfied with the result and the reference to the infamous hot coffee case, the plaintiff appealed.

After the Court of Appeals affirmed the judgment, the Utah Supreme Court reversed and remanded the case to the trial court.  In finding that the reference to the McDonald’s hot coffee case was improper, the Court discussed at-length the general public ignorance of the facts of the McDonald’s case and recited the standard pro-Liebeck talking points (i.e. coffee measured 180-190 degrees, McDonald’s received 700 previous complaints, etc.).  Given this perceived ignorance, the Court stated:

Given the uniquely iconic nature of this case, the passion it has produced in the media, and the general misunderstanding of the totality of its facts and reasoning among the public, we find it hard to imagine a scenario where it would be proper for a party’s counsel to refer to it before a jury. Generally, as here, such a reference would seem to have the sole purpose of recalling the public outrage over isolated elements of the case—thus improperly appealing to a jury’s passions. It is not the jury’s job to make legal determinations, so no legal arguments from the case are relevant. The facts in the McDonald’s coffee case were not in evidence before this jury and were also utterly irrelevant. Indeed, the one attempt counsel made to make her reference seem relevant was a misrepresentation because the high punitive damages award in the McDonald’s coffee case had nothing to do with a per diem analysis. It is certainly unfair to require the other party to clarify all the misconceptions about this irrelevant case in the limited time allotted for closing argument. The great latitude provided in closing arguments regards reasonable inferences about evidence properly before the jury and does not extend to misrepresentations or efforts to appeal to a jury’s passions. Thus the reference to the McDonald’s coffee case in closing argument was improper.

While we may disagree with some of the Court’s talking points, we have to agree that the reference to the McDonald’s case was improper in this context.  The jury should be deciding the case based on the facts at hand and not based on whatever misconceptions they may have about another case tried in another jurisdiction years before.  Interestingly, it appears that defense counsel may have been equally ignorant of the facts of the McDonald’s case as those sitting in the jury box.  As the Court correctly noted, the high punitive damages awarded in the McDonald’s case were based on two days of coffee sales and not the per diem analysis used to calculate pain and suffering to which he was arguing.

There is nothing wrong with continuing to discuss the McDonald’s case.  We do it a lot here at Abnormal Use.  However, we should keep it in its proper context and out of the courtroom.

And, for good measure, let’s try to know the facts before bringing the case up in public.

(Hat Tip: Eric Nordstrom).

Wedding Disasters: Funny Stories Or Lawsuit Worthy?

Weddings are a big deal. Couples  spend thousands of dollars to make sure every tiny detail is perfect. Unfortunately, however, there is no guarantee the ceremony will go off without a hitch. Even when spending a small fortune, a wedding can be ruined by a rain shower or an intoxicated participant. Sometimes, the “disaster” transitions into a humorous story after time removes the scarring. Other times, the disaster is so egregious that it might just lead to a lawsuit. It is a fine line, to be sure. Recently, a South Carolina couple has alleged that they found themselves on the wrong side of that line. But let’s allow you to judge.

According to a report out of the Daily Mail, a Charleston couple claims that their 2013 wedding was ruined after a man exposed his genitalia during their ceremony in the courtyard of the Doubletree Inn. Apparently, a naked hotel guest decided that he wanted to take part in the ceremony by standing in front of an open window overlooking the courtyard in all his glory. This curious event transpired after the couple was allegedly assured by hotel management that the ceremony would not be disrupted by hotel guests not in attendance. As a result, the couple and the bride’s parents have filed suit against City Market Hotels seeking actual and punitive damages for negligence and emotional distress. The streaker is not named as a defendant.

We understand the couple’s frustration. You only get one wedding day with your partner. Now, this couple’s special day will always be marred by the actions of a creeper. The question is, however, what, if anything, is this suit worth? Certainly, like any business transaction, if you don’t get what you pay for, you should be able to ask for a refund. Our guess is that if that was all the couple wanted, then there would have been no reason to file suit.

For some, an event such as this is so unconscionable that it will forever cause anguish. For others, it leads to a heck of a funny story from an otherwise bland wedding. We imagine the jury pool will be made up of those on both side of the divide. Whether or not the couple recovers, this event will make for a story they will one day tell their grandchildren. Of course, a good laugh will ensue.

R.I.P. Buckyballs

Buckyballs, we hardly knew ye. Last week, the Consumer Product Safety Commission announced a formal recall of the controversial product, putting an end to the two year fight with the product manufacturer. The recall comes on the heels of a well-publicized fight between the CPSC and Buckyballs’ CEO Craig Zucker. After the company openly mocked the CPSC’s efforts to ban the spherically-shaped magnets, the CPSC, in an unprecedented move, went after Zucker personally. While Zucker fought valiantly, he eventually succumbed to the CPSC back in May, agreeing to place $375,000 in trust to facilitate the recall.

We here at Abnormal Use are in a state of mourning now that the recall has come to fruition. Not just because we question the motives of the CPSC. Not even because the Buckyballs saga has been a great source of blog fodder. But, rather, because we respected the fight in Zucker. It is one thing for us to criticize the CPSC behind the protection of our computers. It is quite another to directly challenge the CPSC’s methods.

Never again will we see the likes classic CPSC burns like:

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or

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Zucker and Buckyballs are the Secretariat of the product recall world. There will never be another. Like DiMaggio’s 56-game hitting streak, Buckyballs will never be forgotten. We all knew it had to end at some point, but, unfortunately, it was the CPSC that had to be Zucker’s game 57.

“Too Fast” Bat Decision Upheld By Tenth Circuit

Not too long ago, we reported on the decision of an Oklahoma federal court to toss a $951,000 jury verdict against Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats. As you may recall, the jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries. In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn. Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball. The court held, however, that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.’”

In an unpublished decision, the Tenth Circuit Court of Appeals recently affirmed the trial court’s decision to grant Hellerich’s motion for judgment as a matter of law. In a well-written opinion, the Court examined the plaintiff’s theory that the bat was unreasonably dangerous because it hit a ball “too fast.” In order to recover on such a theory, logically the plaintiff would need to show the the speed of a ball off of an “ordinary” bat versus the speed of the ball off of the bat at issue. Because the plaintiff produced no objective evidence of either component, the Court held that the district court judge did not err in correcting the jury’s verdict on defective design. The opinion can be found at Yeaman v. Hillerich & Bradsby Co., No. 12-6254 (10th. Cir. June 30. 2014).

While this case involves a much different set of facts and rests on a different theory of recovery, it is an interesting contrast to the recent flying hot dog opinion in which the court held that the risk of being hit by a flying dog was not inherent to baseball and, thus, a baseball team could not be shielded from liability. The risks of being injured by a ball struck by a bat are clearly inherent to the game. This Louisville Slugger case, on the other hand, attempted to establish that the bat was somehow unreasonably dangerous beyond those inherent risks. An interesting theory, to be sure. While the jury may have bought it, the court saw otherwise.

Flying Hot Dogs Not Inherent To The Game of Baseball, Says Missouri Supreme Court

If you follow Anne Coulter’s reasoning, we assume you aren’t caught up in the World Cup craziness. As such, you are left to focus on America’s pastime, baseball, in order to get your sports fix for the summer. Baseball is a fine sport, to be sure, but things often get a little boring at this point in the season. Thankfully, the Missouri Supreme Court has finally issued its opinion in the now infamous flying hotdog case, Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. June 24, 2014), to spice up the mid-season doldrums. Of course, we had to review and comment upon this important piece of jurisprudence.

For those new to the case, the facts are these: Coomer is an avid baseball fan who had been to approximately 175 Kansas City Royals games. In September 2009, during game number 176, Coomer was hit in the face by a hotdog thrown by the Royals mascot, Sluggerrr. The impact of the flying dog allegedly caused Coomer to sustain a detached retina. Thereafter, as you might expect if you regularly read this blog, Coomer sued the Royals. The case proceeded to trial, and the jury charged as to whether the risk of being hit by a hot dog was inherent in attending a Royals game. After receiving this charge, the jury returned a defense verdict, allocating 100 percent of the fault to Coomer himself. In a lengthy opinion, the Missouri Supreme Court vacated the jury’s decision and remanded the case. At issue in the case was the so-called “Baseball Rule” which essentially protects teams from risks that are inherent to the game, i.e. foul balls entering the stands. According to the Court, the members of which have apparently never heard “Take Me Out to the Ballgame,” the risk of being injured by Sluggerrr’s hot dog toss is not one of the inherent risks of watching a Royals home game. Because assumption of risk is a question of law, the Court held that it was an error to charge the jury on the issue and that such a charge was prejudicial.

Admittedly, when we here at Abnormal Use first heard about this case, we were skeptical. It is not uncommon to see vendors tossing food to fans at a baseball game. (Note: Sluggerr’s official website indicates that he throws hot dogs.). Plus, the thought of a flying hot dog injury sounds absurd on its face. Nonetheless, we must actually agree with the Missouri Supreme Court in this instance. As crazy as a flying hot dog might sound, we don’t believe it is necessarily a risk inherent to the game of baseball nor do we believe it is within the intended scope of the “Baseball Rule.” Unlike a foul ball, this type of harm could more easily be avoided albeit to the dismay of food tossing mascots everywhere.

If this case is tried again, the jury could always return the same result if it finds Coomer was negligent in some manner by not preparing himself to catch the dog (who knows?). The real impact of this decision may not be felt by Coomer but by sports teams nationwide. Certainly, teams will have to think twice before allowing mascots to distribute items to fans by hand toss or t-shirt gun. Which begs the question, what else do mascots actually do?