We mention this as way of backdrop for an interesting situation that arose last week at The Heart Attack Grill in Las Vegas. According to Yahoo! News, a man recently suffered a heart attack while eating the Grill’s “triple bypass” burger. Fortunately, the man survived the attack, and by all accounts, should make a full recovery. While there is no indication of any potential lawsuits rising out of these events, we here at Abnormal Use had to question whether there could be.

While restaurants have been sued for causing obesity, we are not aware of any restaurants being sued for causing heart attacks. Obviously, the isolated consumption of a burger is not enough on its own to cause an attack. Eating similar foods, however, over a period of time can reek havoc on one’s arteries. Knowing as much, what should the Heart Attack Grill do to protect itself from future lawsuits?

To the restaurant’s credit, it has taken measures to provide adequate warning. If its name was not enough, a sign on its door warns that its food may be hazardous to your health. The Grill’s servers are known as “nurses” and its owner, “Doctor.” With menu items like the “triple bypass” burger and “flatliner” fries, customers should have fair warning the meal would not win the approval of “The Biggest Loser.”

It should be noted that while the restaurant jokingly warns its consumers, it also entices them with its slogan, “Taste worth dying for.” To make matters worse, anyone over 350 pounds eats at the restaurant for free. Unlike the lure of a forbidden fruit, however, a consumer must assume the risk before partaking in a butterfat milkshake. (Yes, it is on the menu).

While this may seem absurd, don’t be surprised to see a restaurant promoting unhealthy food show up on the litigation radar in the future. Fortunately for the Heart Attack Grill, no one can say they didn’t provide fair warning.

The man was in his home office when the device allegedly exploded, leaving behind burned carpet, furniture, pictures, and office equipment.  That must have been quite the explosion.   The culprit appears to be a faulty lithium rechargeable battery inside the device.  Investigators do not know the brand of electronic cigarette or type of battery. The fire department chief, Joseph Parker, said that ”the best analogy is like it was trying to hold a bottle rocket in your mouth when it went off.”  Ouch!  With a statement like that, we’d say its a pretty safe bet that Chief Parker will be called as a witness for the plaintiff if a lawsuit is filed when a lawsuit is filed.

We previously reported on some of the issues surrounding electronic cigarettes here and here.  However, we certainly didn’t see this BOMBshell coming.  It should be interesting to see what may have caused this explosion, since there appear to be no other similar incidents involving electronic cigarettes.  Was this guy using the device improperly?  How old was this electronic cigarette? Was the battery put in incorrectly?  Did Al-Qaeda get their hands on it?

Discovery in this case should be interesting.

As we previously posted last November,  the Chevy Volt – GM’s extended electric car – was alleged to be at risk to catch fire due to potential design flaws.   The bad press continued in December in the mainstream media.   The result?   In January of 2012, GM sold a whopping 603 Chevy Volts.  This was down from 1529 units the prior month.  By comparison, Nissan Leaf sales were also down in January, but only from 954 to 676.

So it certainly appears that the alleged fire risk played a large role in the declining sales, even though it may not account for the entire decline.

Both GM and the National Highway Traffic Safety Administration (NHTSA) recently concluded that the alleged fire threat is much ado about nothing.  As we also posted in January, we are pretty confident this investigation was completely on the up and up.  It’s not like the NHTSA and the federal government have a vested interest in GM, right?   As an extra incentive, perhaps the feds should throw in a fire extinguisher along with the $7,500 tax credit that buyers get when they purchase a Volt.  They could certainly afford a few fire extinguishers since it doesn’t look like GM will ever sell all of the 200,000 units for which the feds agreed to provide that tax credit.  But we digress.

All of this just goes to show, even if the lawsuits over a defective product don’t get you, the bad press might.  Then again, we’re pretty sure some sort of class-action lawsuit will follow shortly.  They always do, right? Stay tuned.

Way, way back in the early 1970′s, there was once a television program called “The Young Lawyers,” which starred Lee J. Cobb, Judy Pace, and Zalman King (who passed away earlier this month at age 69). At some point during the show’s run, Dell Comics published the comic book above dedicated to the program. Its tagline for this issue reads: “When a bomber strikes, who is to blame?” We would suggest that the person to blame is likely the bomber. (Maybe they young lawyers never took Crim Law.).

Max Kennerly of the Litigation & Trial law blog offers this great post entitled “The Real Risks of Writing a Legal Blog.”

As you know, we here at Abnormal Use go to great lengths to chronicle the hot coffee litigation.  Some have accused of us of trying to relitigate a long dead issue (or is it beat a dead horse?).  However, it seems these issues may be more relevant than even we realized.  Just last week, at the local Starbucks drive-thru right here in our own Greenville, South Carolina, we overheard:  ”Give me a Venti Americano, two Splendas, and . . . make it extra hot!  I mean, really hot!” Contributory negligence, perhaps? Assumption of risk?  Or something more sinister? Perhaps this zealous customer was seeking a golden payday.  Stay tuned to Abnormal Use to find out.

Here we go again!  According to this report by Jon Campisi at Legal News Line, “[a] Philadelphia woman who claims she became burned by a hot cup of coffee at local Burger King is suing the fast food giant in state court.”  The incident occurred on Valentine’s Day 2010, two  years ago this week, and the Plaintiff alleges that “[t]he lid had not been properly placed on the cup, causing the hot coffee to spill on [the Plaintiff]” when the fast food employee handed it to her at the drive thru.  We’ll be following this one.

Hey, deponents, don’t call your 88 year old grandmother “The Creeper” at your deposition.  Okay? Thanks.

At first glance, the complaint reads more like an editorial from The Onion mocking gamers than a pleading in federal court. We would hate to be the attorney charged with explaining to a federal judge how the abomb affects spell casting and hinders a gamer’s ability to become a Level 35 dark elf. However, we here at Abnormal Use can sympathize with the plaintiff’s abhorrence of video game freezing.

We can still remember our younger days when video game defects could easily be cured by blowing into the cartridge and banging the Nintendo console a few times. As technology has improved, these old-fashioned remedies are no longer available. But is a federal court the proper venue to redress these problems?

If the basis of these claims were another product, a computer for example, rather than a video game, this lawsuit likely would receive less scrutiny. If our computers froze after 200 hours of use, denying us access to the Internet, we may be more likely to consider the product defective. But a video game? Maybe it’s the stigma talking, but we doubt this one will hold up in a court of law.

This defect allegedly occurs after at least 200 hours of gameplay. In the named plaintiff’s case, the defect arose after 450 hours. What is the shelf life on a video game? The plaintiff may not consider 450 hours ample time to explore Oblivion, but we consider it the equivalent of a pickup truck rolling over 200,000 miles. Four hundred fifty hours is over an hour of gameplay per day for a year. Maybe the abomb is Bethesda’s cue that your social life may be lacking.

According to reports, a Florida magistrate has recently recommended the case be dismissed on jurisdictional grounds. However, it will be interesting to see if this is just the beginning of the video game defect lawsuit. We too have experienced our own fair share of “abombs.” We just choose to if them the old-fashioned way – by turning the game off.

P.S. According to the complaint, every copy of Oblivion is affected with the abomb. We can personally attest that we purchased Oblivion when it was released in 2008 and we still maintain the ability to cast spells and open doors (not that we do this type of thing on a regular basis).

The case is captioned Shake et al. v. Frito Lay North America, Inc., No. 12-408 (E.D.N.Y. Jan. 30, 2012).

These allegations raise a couple of pertinent issues. First, can the plaintiff really claim that he paid a premium for “all natural” chips?  For many, a ten cent premium may seem trivial.   We here at Abnormal Use appreciate the desire to purchase organic or all-natural foods. In doing so, we expect to pay a premium.  However, we would expect these premiums to far, far exceed the 10 cents alleged by the plaintiff.  Ever try purchasing organic milk for 10 cents more than its non-organic counterpart?  When faced with the decision of purchasing two bags of chips, one “all natural” and one not, we doubt a 10 cent differential in price is a deciding factor in the process. In fact, we might not even notice the difference in cost.

Second, to our knowledge, the Food and Drug Administration has no definition for “natural” as it applies to food labels.  Of course, it may be difficult for the FDA to define such a term.  What is “all natural” anyway? Certainly, the phrase can be left to varying interpretations.  Should “all-natural” be restricted to plants grown without the use of pesticides?  Or should the definition go further?  Apparently, the plaintiff’s beef with Frito-Lay is that the company uses organisms genetically modified in a lab by swapping genetic material across species.  It is unclear whether the allegations stem from the “genetic modification” itself or that the modification itself which occurred in a lab.  Genetic swapping occurs naturally all the time.  We can not even begin to count the number of products we enjoy on a daily basis that were created as a result of “natural” genetic swapping.  Are these products considered “all natural”?  Where do we draw the line?

The desire to eat foods the way they were intended is a noble feat.  However, we shouldn’t be so quick to dispose of the advances of modern science.

Let’s not be so quick to pass judgment on new plant species created by the marvels of modern science. Who knows, maybe we are on the brink of the new “natural”?

As lawyers, we are a sanguine and cynical bunch, but we don’t really have to be, do we?  Sure, we may believe that the most unreasonably dangerous and defective product in our life is our own heart, but we can vanquish those thoughts from our mind today, Valentine’s Day.  Accordingly, we here at Abnormal Use wish you a wondrous and resplendent day.  Yes, Valentine’s Day may be a greeting card holiday, one seized upon by chocolatiers and flower sellers and would-be purveyors of happiness.  But, if we can pretend for a lunar cycle that we remain actual human beings and not just toiling attorneys at law, that may not be such a bad thing after all, eh?

So, without further ado, Happy Valentine’s Day to you and whoever is your special someone.

Oh, and depicted above is the cover of Star Wars: A Valentine Story #1, published by Dark Horse Comics not so long ago in 2003..  You can see that even intergalactic heroes face their own dilemmas on this day. Of course, our question is this: If the events depicted in Star Wars occurred “a long time ago, in a galaxy far, far away,” how do they even know about Valentine’s Day?  Another George Lucas plot hole, we suppose.

And, of course, you should revisit last year’s Valentine’s Day post – featuring not one but two comic book covers – here.

I spoke with a plaintiff’s attorney recently who files a lot of litigation on behalf of plaintiffs allegedly injured by portable gas cans.  Although we didn’t speak at length about the issues involved with the particular product, he mentioned something about an inexpensive component part that prevents fires but was not readily incorporated into the cans themselves by the manufacturers.  A simple Google search on “gas can litigation” revealed that many plaintiffs’ attorneys actually list this type of litigation on their websites as a distinct area of would-be expertise, proving what the lawyer had impressed upon me: that gas can litigation is big business these days.

I ran across the recent case of Murray v. Traxxas Corp., — So. 3d —, 2D10-3789, 2012 WL 279657 (Fla. Dist. Ct. App. Feb. 1, 2012), which appears to illustrate my colleague’s point.  The facts of the case are relatively simple.  Two boys were trying to build a fire using leaves, sticks, and a cigarette lighter at their grandparents’ house so they could roast marshmallows.  They had trouble lighting it, so they searched for an alternative fuel source.  What they found in the garage was a portable gas tank containing gasoline.  As one of the boys tipped the open gas can toward the pile of leaves and the lighter, before any fuel spilled out of the can, an explosion occurred.  One of the boys sustained severe burns as a result of the explosion.

Witnesses who looked at the gas can after the accident, including a fire inspector, described the can as looking “bowed out.”  Photographs were taken by the inspector, but the can was disposed of by the grandparents, who believed it still posed some danger.

Inevitably, a battle of the experts ensued; it focused on whether a “flashback” explosion had occurred.  The plaintiffs’ expert argued the can was defectively designed because it did not have a so-called “flame arrestor,” an inexpensive component that would have prevented such an occurrence.  According to the expert, “flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans,” and by not incorporating one into this particular can, the manufacturer defendants were negligent.

The defendants moved for summary judgment, which the trial court granted on the grounds that the can itself had not been maintained for inspection and testing.  As the appeals court remarked, the disposal of the gas can gave rise to two particular problems for the trial court.  First, there was no way to tell whether the original fuel was in the can, or whether it had been replaced by a different fuel.  Second, the trial court held, the plaintiffs could not meet their burden of proof to show design defect because the can itself could not be tested. The court of appeals didn’t see it the same way.  It noted that the plaintiffs had proven an unbroken chain of custody for the can and its contents.  Furthermore, the court observed, it was unlikely that the original can could have been tested at all after the damage it sustained in the explosion and, in any case, similar cans could be tested because the manufacturer had been positively identified.  The appeals court reversed the summary judgment and remanded the case for further proceedings.

We don’t yet know the outcome of this case, but from a plaintiff’s attorney’s position, this litigation is pretty savvy.  Here is a product that, allegedly, can be made safer with a very inexpensive device.  That, combined with the potential for serious burn injuries and property damage from cans without the device makes it a pretty attractive piece of litigation. Defense lawyers should be aware of these arguments when defending these cases and prepare for them accordingly.

Behold! Above you’ll find an image of an old Dell comic book featuring Disney’s own Mickey Mouse! It appears that our hero has donned the garb of a private detective, and he’s even gone so far as to post an advertisement hawking his services as a “Private Eye for Hire.” Perhaps he is even assisting local law firms investigate their clients’ potential claims and defenses. Let’s hope, though, for the mouse’s sake, that he has complied with all state regulations and properly secured his state-issued investigator license.  We can certainly imagine a situation where Mickey Mouse is deposed and vigorously cross examined about his failure to comply with the state’s licensing scheme.  Poor Mickey.

In response to yesterday’s post observing the tenth anniversary of our editor Jim Dedman’s graduation from Baylor Law School, friend of the blog and Baylor lawyer Eric Nordstrom sends in this YouTube movie clip noting the significance of the passage of a decade.  It’s a clip from the 1997 flick Grosse Pointe Blank,  a film we couldn’t love more, so we direct you to itww. on this day.

Earlier this week, we ran not one, but two posts on the perils of social media and how your advocate opponents might use it against you in the future. As you may have seen, our editor Jim Dedman had a general piece on the issue, while guest author Stuart Mauney offered a real life example of his own Facebook posts being used against him at a mediation by an opposing attorney. These posts prompted some discussion in the legal blogosphere. We’re happy to report that Bruce Carton at Law.Com’s Legal Blog Watch picked up on the story. We encourage you to visit his post and peruse his readers’ comments.

Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm and on Facebook here. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).

Today, we offer this piece on the tenth anniversary of my graduation from Baylor Law School.

It was February 9, 2002, in Waco, Texas, when I graduated from law school, ten years ago today.

First things first, yes, I graduated from law school in February.  This is due to the fact that Baylor Law School, which runs on quarters rather than semesters, occasionally prompts an odd graduation date.  So, there I was, in February of 2002, preparing to graduate and take the February bar exam later that month.  That’s just the way we roll at Baylor University.

I had always enjoyed my time at Baylor Law.  A relatively small institution, it boasted a total of 450 enrolled students at the time of my graduation a decade ago.  When I started at Baylor Law in May of 1999 (another unusual start date, due to the quarter system), I had only 30 or so students in my starting quarter.  You always hear the stories of cutthroat classmates at larger schools; but this was not the case at Baylor, as the school was simply too small for anyone to get away with such antics.  Really, there was an unusual esprit de corps in the student body, brought about both by the size of the institution but also the shared looming dread of Baylor’s very difficult third year curriculum (a mandatory year long advocacy and civil procedure program known as Practice Court).

For the occasion of my graduation, my parents, my brother, and even some friends, trekked to Waco.  Few of them had previously visited my fair city. Most only knew the town because of its relatively recent notoriety from the Branch Davidian standoff just a decade before.  But we all met at the brand new Sheila and Walter Umphrey Law Center, which had just opened a few months before in the fall of 2001.  (In the late 1990s, Baylor Law alum Walter Umphrey, a famous Plaintiff’s attorney from Beaumont, Texas, gave a $10 million gift to Baylor to fund most of the new building. There is a dash of historical irony in the funding source, as Baylor has traditionally been defense oriented in its legal philosophy but its palatial new building was funded mostly by a trial lawyer’s mighty gift.). However, in 1999, I began my legal education in the old Morrison Hall.  At that time, the administrators of the law school knew that they would soon be building a brand new law center, and so, most funds were earmarked for that purpose and general upkeep of  old Morrison Hall was – shall we say – not the highest priority.  It wasn’t until August of 2001 that the new building would be completed and opened.

In the autumn of 2001, the new law center was immense, immaculate, and quite simply, amazing.  So new was the building, in fact, that there were no televisions in the public areas of the building on September 11, 2001.  Many students sat in the student lounge by the radio, of all things, listening to the news in the same way people must have on December 7, 1941.

So it was, in February 2002, that we congregated at nearby Miller Chapel on the main campus for the graduation ceremony. Twenty six of us graduated that day, and the commencement speaker was Professor Gerald Powell, who taught me both Evidence and Advanced Evidence.  Just a few months before, in November, at the new law center’s first graduation ceremony, Umphrey himself was the commencement speaker. But Powell was someone all the graduating students knew well, as he had taught them all.  I had been his research assistant and in 2001 wrote a paper for him on the admissibility of email and Internet evidence, new topics back then.

Powell’s speech was weighty and very well received. It was just a few months after 9/11, and that tragedy was on every0ne’s mind.

That day, he said:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

…

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

…

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

The speech was later circulated by email to those in attendance, likely by Baylor Law’s unofficial historian, Eric Nordstrom, who would graduate later that year.

After a reception at the law school, but before that evening’s festivities, I had a bit of free time, so my younger brother, Bert, and my old pal, Alistair Isaac, and I decided to do the one thing that I had never done in Waco but had always wondered about doing: visiting the remains of the infamous Branch Davidian compound.  In the late 1990′s and early 2000′s, and probably today, one cannot attend school in Waco and not be asked constantly by friends from other cities if you have visited “the compound.”  Prior to my graduation, I never got around to doing so, but it seemed like an appropriate final quest on the day of my graduation, my last official day as a student in the city.  So, we found a set of directions on the Internet (which are still online today!) and ventured out to find the compound.  I drove my 2000 Honda Civic with Bert and Alistair as passengers, and we followed the directions, but somehow, along the way, we found ourselves lost.  This was rural Central Texas.  We were in an area of large fields, farms, and farm houses.  There were not many commercial establishments at which to stop and ask directions.  In fact, as we slowed the car to look for places to ask for assistance, we saw one house with a large sign on it which exclaimed simply “Don’t ask!”  We took that advice.  A few minutes later, we drove past a field in which a farmer was plowing or riding a horse or doing something along those lines.  My brother hopped out of the vehicle and walked toward the man.  Before my brother could utter a word, the man said simply, “You’ve already passed it.  Go back a mile or two and take the left that you missed.”

How about that?

Even in February of 2002, the compound was no longer the structure you might recognize from the 1993 media coverage. There was a tree orchard planted to commemorate those who had not survived the standoff.  There was some minor portion of the housing structure still in place, but not really enough to recognize it for what it was.  On some level, the visit was anticlimactic; after being asked about the compound for all the years that I lived in Waco, it was just a field of sorts with a handful of derelict structures.  We saw a burned out passenger bus at the scene, which we later learned was the result of vandalism years afterward and not the standoff itself. (Alistair and I thought the old bus had something very cinematic about it, but that’s a different story for a different day). And that was basically it for the compound.  We returned back to the city and readied ourselves for the evening to come.

Later that night, we congregated at George’s Restaurant, a local watering hole that has been memorialized in Texas country songs in part for its Big O’s, large, very large glasses of beer.  The whole graduating class was there, as were many other friends and students, and I suppose that was the last time we were all together in the same room before scattering off to different corners of the world.

And that was ten years ago today.  At that time, I was 26 years old, having just reached that age a month before in late 2001.  My concept of being a lawyer was not completely uninformed, as Baylor focuses on the practical components of legal education (a topic we’ve discussed here on occasion).  Although I am confident that on that day I never paused to reflect upon what my career would be like ten years later, I certainly would not have predicted that I would be 1,000 miles away from Texas in North Carolina. But here I am.

It’s funny where life takes you.

So, what does it all mean? Like all the others who graduated that day, I’ve been a law school graduate for a decade.  For those of us who began and developed our careers during that time period, almost everything has always been online – whether it be treatises, the laws and statutes themselves, cases and orders, law review articles or other such things.  And, of course, as time has progressed, they have only become more accessible, with the advent of laptops, wifi, and of course, iPad apps.  However, unless graduates have been particularly lucky, trials have not been in abundance.  The older lawyers talk about the days in the 1970s when you could get called to court on a moment’s notice to try a case unexpectedly.  But those pesky discovery rules we learned in law school arm clients and advocates with enough information to accurately gauge exposure, and thus, trials can be (and are regularly) avoided.  There are fewer surprises, and the days of trial  by ambush are long in the past.   It’s a different world than the one our professors and bosses knew when they graduated.

The legal blogosphere came along just about ten years ago and facilitated great discussion about the (major and incredibly minor) issues of the day – which is a great boon to the profession.  But, really, when I look back at the last ten years, I don’t face some existential dilemma as to what might have been had I not become a lawyer.  Rather, I am reminded of the fun moments that the career has afforded me.  There are silly moments, and there are meaningful ones.  Most enjoyable are those moments, at a deposition, hearing, or trial, when you realize that your preparation and hard work are about to pay off and that no one else in the room has realized it yet.  That feeling, that sense of accomplishment and victory, moments before you officially prevail – is what makes being a lawyer fun and interesting.

This is not to say that every day offer such moments.  There are those weeks that we spend in faraway places reviewing documents in old warehouses without air conditioning.  There are long drives and long waits in airports and courthouse hallways.

But in the end, we realize that one appeal of this profession is that it is different every day.  There are new challenges to face with every case and every hearing and deposition.  Although fewer and fewer cases go to trial these days, we must remain vigilant and prepare in case the one we are working on at present does go that route. And that’s something I learned way back in Practice Court at Baylor Law.

(Special thanks to Jerri Cunningham, the Baylor Law School registrar, for confirming some details for me and forwarding me a copy of Professor Powell’s speech).