Can Defense Lawyers Co-opt The Reptile Strategy?

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In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution.  The $95 book is meant to teach Plaintiff’s attorneys “how to make tort reform’s impact on juries insignificant by using the jurors’ most primitive instincts of safety and self-preservation.” For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival.  Keenan and Ball explain that jurors will disregard the facts, law, and so forth to do whatever it takes to survive and that tort reform has taken control of those survival-oriented decision making parts of the brain.

Accordingly, the Reptile strategy is used to retake control of the same “reptile” part of the brain and use that control to manipulate jurors into returning large verdicts.  For the reptile strategy to work, the jurors must be convinced that public safety, and their personal survival, will be negatively impacted unless they return a verdict in favor of the plaintiff.  One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, not the harm which actually happened.  The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous.  In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for $6,211,466,889 in verdicts and settlements.  In reading the book, we wondered whether the reptile strategy can be used by the defense as well, and two possible uses for the reptile by the defense come to mind.

We first wonder whether the reptile tactic can be employed in support of affirmative defenses such as contributory negligence arguments.  The reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public.  Why can’t the defense establish that, in the process of contributing to or causing his own injuries, the plaintiff endangered the public?  Why can’t product warnings provided to the plaintiff be safety rules which protect not only the plaintiff, but the public who may be in close proximity while the product is being used?  Why doesn’t the user of the product who disregards product warnings thereby endanger the public?  There are numerous articles on combating reptile tactics by reframing questions, objecting, filing motions, et cetera.  Obviously, if a defendant takes the position that the Court should exclude the reptile from the courtroom, it would be unwise for the defense to then employ the tactic.  We simply suggest here that, if the reptile does end up in the courtroom, perhaps the defendant can fight reptile with reptile.

We also wonder whether the reptile tactic can be employed by the defense to present to the jury all of the safety rules that the defendant did follow.  That is, can the reptile brain be calmed by showing that the defendant was compliant with x number of safety rules at the time of the incident? Depending on the facts of the case, can the defendant show that it complied with the myriad of OSHA regulations, ANSI standards, FMVSS regulations, local ordinances, municipal laws, or any rules or regulations which are potentially applicable?  And that compliance with these rules not only provided protections to the plaintiff, but to the public at large?  Obviously, this is already done to an extent, but we simply ask whether the reptile tactic can be employed in this context by the defense.

Willie Nelson Latest Target of Music Copyright Infringement Suit

Just days after a jury found Robin Thicke and Pharrell liable to the tune of $7.4 million for channeling the late Marvin Gaye in creating their mega hit “Blurred Lines,” Willie Nelson finds himself as the target in a similar lawsuit.  According to a report from the Atlanta Journal Constitution, Ashley Wilson and the estate of Mark Reynolds have filed suit in federal court in Atlanta against Nelson claiming that his song, “Roll Me Up and Smoke Me When I Die” is a rip-off of their song bearing the same name.  Specifically, they allege that:

[T]he infringing work contains the same title and dominant line in the chorus as the original work, with substantially similar melody, rhythm and cadence, as well as substantially similar lyrical themes.

Nelson released his song on the Heroes album back in 2012.  Wilson and Reynolds allegedly wrote theirs in 1990, performed it throughout the 1990’s, and released it on Georgia radio.  In March 2012, prior to Nelson spending five weeks atop the American radio charts, the Wilson/Reynolds version was uploaded to YouTube.

We here at Abnormal Use will refrain from jumping to quick conclusions in this matter. Certainly, if Nelson is profiting by singing the exact same song of another without proper attribution, then he should pay for it.  On the other hand, we seriously doubt Nelson, Wilson, and Reynolds are the only potheads persons to come up with some ingenious title like “Roll Me Up and Smoke Me When I Die.”  If they all just happen to have similar stoned ideas, then perhaps no real infringing harm is done.

We don’t know what effect, if any, the Thicke/Williams lawsuit has had on this one.  However, we are concerned that with the verdict, these music infringment suits shall become more and more popular.  As both lawyers and music lovers, we are not happy with this turn of events.  We have often expressed concern that music has been on a steady decline since the 1990’s because every good idea has been used.  Every musician is influenced by those who came before him or her and those influences are naturally recycled into new songs.  What do we think will happen to music if every time one of those influences peeks its head in a new song, the forefather brings an infringement suit? Musicians could never listen to other music out of fear it might surface in their own.  And, if they never listened to music, they wouldn’t know what music is so they would never become musicians in the first place!  Alas! Music is dead.

Or, maybe we are exaggerating slightly.  Thinking about Willie Nelson songs will do that to you.

Court Finds Sizzling Nature of “Sizzling Fajita Skillets” Is Open and Obvious

In the latest news from the hot food injury front, a New Jersey appellate court affirmed the dismissal of a lawsuit against Applebee’s arising from some alleged steak fajita burns.  According to reports, a man ordered the signature steak fajita skillet (identified more specifically on the menu as “Sizzling Skillet Fajitas”) from a New Jersey Applebee’s back in 2010 and apparently did not feel he was “eating good in the neighborhood.”  When the man bowed his head to pray, he alleges that he heard a sizzling and popping noise coming from the fajita.  Thereafter, in the midst of his prayer, he felt grease burning his left eye and face.  Panicking from the burns, he knocked the sizzling steak fajitas into his lap, causing additional injury.  None of the burns were severe enough to cause scarring, apparently.  The man filed suit on the grounds that the restaurant and his waitress failed to warn him the steak fajita skillet meal was hot.  The court, however, found that any dangers posed by the dish were open and obvious.  The case is Jiminez v. Applebees’s Neighborhood Bar & Grill et al., No. A-2247-13T2 (N.J. App. 2015).

We have to agree with the Court’s ruling.  Any hot food failure to warn case should be thrown out as a matter of law when the food contains the word “sizzling” in its title on the restaurant’s menu.  Something just doesn’t sound right about ordering “sizzling” fajitas and suing the restaurant when those fajitas are, in fact, sizzling.

What makes the case interesting is a fact seemingly glossed over in the reports – when were the fajitas delivered to the table during the praying process?   Thankfully, we have the opinion to let us know that the food had been delivered prior to the man starting his prayer. With this fact in hand, it can be argued that the man should have observed the food sizzling prior to hanging his head over it.  The food didn’t leave the kitchen warm and wait until arriving at his table to begin sizzling.  On the other hand, if the man had begun praying before the fajitas arrived and the waitress delivered them under his bowed head, then arguably the waitress (and Applebee’s vicariously) could be held liable.  Such liability would not come from the temperature of the food but, rather, from the act placing the man in close contact to it without his knowledge.

The most notable omission from the news reports is that this case is absolutely not reminiscent of the infamous McDonald’s hot coffee case  even though they can’t help but claim it is.  This case had a single cause of action – a negligence claim sounding in premises liability.  The McDonald’s case, on the other hand, was couched in product liability where the hot coffee itself was alleged to be unreasonably dangerous and defective by virtue of its temperature.  We would have sided with the defendant here under either theory, but let’s at least try to not to compare apples to oranges.  Or sizzling fajitas to hot coffee.

Friday Links

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Above, you’ll find the cover of Advanced Dungeons & Dragons #23, published not so long ago in the halcyon days of 1990. We’re not entirely certain what is occurring here on the cover, but with the exclamation “Lawyers!” prominently displayed thereupon, our curiosity is piqued. The description from Comicvine is not particularly helpful (at least to us):

Onyx the dwarf owes a debt to the mysterious Lawyers and not even the mighty wizard Khelben and the Lord of Waterdeep himself, Peirgeiron, may be able to help him. This is an adventure that may take the Invincible One to the very Gates of Hell! 

The lawyers must be rather formidable if even the mighty wizard Khelben may not be of assistance right?

Radiohead’s album, The Bends, was released 20 years ago today. It features “Fake Plastic Trees,” a nearly perfect rock song.

You can now find the North Carolina Pattern Jury Instructions online. Click here.

Don’t forget to follow us on Twitter. We’re at @GWBLawfirm.

Party For One Alleges She Was Wrongfully Denied Table For Two On Valentine’s Day By Portland Restaurant, Seeks $100,000.00

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Reportedly, a Portland, Oregon woman has filed suit, seeking $100,000.00 in connection with an attempted Valentine’s Day dinner gone awry.  According to the news reports:

. . . Kathleen Hampton, a small business owner, arrived at her 7 p.m. reservation — for two — by herself on Feb. 14 at Enzo’s Caffe Italiano on Northeast Alberta and was made to wait while parties who arrived after her were seated. Hampton’s husband was supposed to join her for dinner, but was still full from lunch and decided not to go.

Once seated, Hampton claims she was ignored ‘and was not getting any services.’ She then told a waitress she was ready to order, but the waitress replied that she would not be taking her order and that Hampton had to leave the restaurant and give up the table.

Hampton also tried to ‘give them away out’ (sic) and order take-out, but the restaurant told her they do not offer the service.

‘That was the final straw,’ Hampton said in the lawsuit. ‘I’ve never heard of a food place not having to-go.’

The restaurant denied any knowledge of the lawsuit, but a representative did remember the night a  bit differently:

‘She made [a] reservation for two and when she got there, said ‘Oh, just by myself,”Lanzadoro told Oregon Live. ‘We offered for her to sit at the bar with other single diners since Valentine’s Day is very busy and all we know is she got up [from the table] and left without paying after she drank two glasses of wine.’

Ms. Hampton’s pro se filing allegedly seeks $100,000.00 as a remedy for the embarrassment and humiliation that she experienced while attempting to dine alone at a table for two on that fateful Valentine’s Day.

We have some questions.  Could it be the old adage about a pro se litigant having a fool for a client is inapplicable here?  Could it be that Ms. Hampton is a fool like the fox – that she wants the jury to see her sitting alone at counsel table so that they will understand the loneliness she felt that evening at the restaurant? Or, will the unidentified husband show up at trial to fill the seat that he could not fill on the night that his wife was wrongfully denied a table for two?  Will the restaurant have an empty chair defense based on the husband causing the party for two to become a party of one?  Or more importantly, if the husband does not show up for trial, will the court allow Ms. Hampton to have multiple chairs at counsel table (just in case he shows up), or will she ironically only be permitted to have one chair?  Will the restaurant counterclaim for the price of the two glasses of wine that Ms. Hampton failed to pay for?

On a serious note, we have a feeling this case has reservations for 12(b)(6) (or as our friends in Oregon say, 21(A)(8)).

P.S. – Is “still full from lunch” a valid excuse to get out of Valentine’s Day dinner? Asking for a friend.

Trolls Gonna Troll? Win A $533 Million Patent Suit . . . Rinse Repeat.

Smartflash is what some in the tech industry might call a patent troll. It licenses patents but doesn’t actually create products.  Last month, Smartflash obtained a $533 million dollar verdict in a patent case against computer giant Apple.  Now, the company has filed another suit against Apple over the same disputed patents that were at issue in the first case.

In the original lawsuit, Smartflash accused Apple of infringing upon a number of patents relating to the access and storage of data, digital rights management (DRM), and payment systems.  The company claimed that these patents were used in a number of devices, including the iPhone and iPad. As noted above, in February, a Texas jury award Smartflash a $533 million verdict against Apple for that alleged infringement.

Apparently, Smartflash is not satisfied with $533 million verdict.  The day after that obtaining verdict, it filed another suit against Apple over these same patents.  They claim that the iPhone 6 and several other Apple products that infringe on their patents were not covered by the first lawsuit because they came to market after the first suit was too far along.  Now they want to be further compensated.

While these cases are interesting, it may all be for naught. As Bloomberg has reported, Apple has already been successful in getting similar verdicts from this particular district overturned. We’ll see what happens.

Angel’s Envy Lawsuit

I received a bottle of Angel’s Envy as a holiday gift two years ago. It was pretty good, as is most bourbon that doesn’t come in a plastic bottle. However, the novelty of Angel’s Envy is in its creation. According to the company’s website, Angel’s Envy Kentucky Straight Bourbon is made in small batches of eight to ten barrels at a time, which is aged for up to six years, presumably in normal casks. During the aging process, approximately 5 percent of the liquid evaporates, which is known as the Angels’ share, hence the name.   The whiskey is then finished for three to six months in port barrels “made from French oak and imported directly from Portugal.”  They also produce a Rye Whiskey which is finished in Rum casks. Nothing on the website mentions the Rye being from Kentucky.

Now Kentucky Straight Bourbon is like Champagne in that there are rules.  To be called Champagne, a sparkling wine must come from Champagne and be produced under certain rules.  To be called Bourbon, 27 C.F.R. 5 requires that bourbon made for U.S. consumption follow be produced in the United States, be at least 51 percent corn, aged in new, charred oak barrels, and various proof requirements.  For rye whiskey, the whiskey must be at least 51 percent rye whiskey, which is why bourbon is sweeter than rye whiskey.

Last year, Mario Aliano and his restaurant, Due Fratelli, Inc. filed suit against Louisville Distilling Company alleging that the company falsely advertised the product as being produced in small batches in Kentucky.  According to Plaintiffs, who have also sued Tin Cup Whiskey and Titos Vodka, Angel’s Envy Finished Rye is neither small batch, nor actually made in Kentucky.  According to Plaintiffs, the rye whiskey is made in Lawrenceburg, Indiana then finished in rum barrels in Kentucky.

While, I don’t support misleading or false advertising, I do support brown liquor.  So in my opinion, the best resolution involves someone getting a couple of free bottles of Angel’s Envy.

Hall and Oates Haulin’ Granola Company to Court

They say imitation is the best form of flattery, but rock legends Daryl Hall and John Oates may disagree. Here’s the long and short of it: Brooklyn-based granola company Early Bird Foods named a line of granola products “Haulin’ Oats.” Hall and Oates’ response: “No Can Do.” Hall and Oates were none too pleased, as reported by Rolling Stone magazine. According to the complaint filed in New York, not only does the rock duo assert that the Early Bird is attempting to “trade off of the fame and notoriety associated with the artists,” the duo also contends that its company, Whole Oats Enterprises, owns a federal trademark registration for the mark “Haulin’ Oats.” The band contends Early Bird’s use of the mark will confuse consumers and lead them to believe Early Bird’s products are approved by the band.

Hall and Oates certainly doesn’t think “It’s A Laugh[ing],” matter, asserting both common law and statutory trademark causes of action. The duo is seeking a permanent injunction against Early Bird preventing the company from using “Haulin’ Oates” or similar marks, compensatory damages, and all profits, gains and advantages derived by Early Bird out of its “Haulin’ Oates” product line, among other relief.

One final note on this new lawsuit. It seems Early Bird and its founder Nekisia Davis are going to ride the publicity wave for the time being, lawsuit be damned. According to NBC News, Early Bird tweeted about the suit and offered a discount on Haulin’ Oats for weekend purchases. The coupon code? SAYITISNTSO. Pretty cheeky response if you ask us here at Abnormal Use. How this lawsuit will resolve is, of course, unknown. However, in the meantime, Davis may find herself as a “Rich Girl,” haulin’ her products to countries near and far.

(Hat Tip: Lowering The Bar).

Friday Links

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Above, you’ll find the cover of Star Trek #6, published way, way back in 1969. Depicted is Mr. Spock, the first officer of the Enterprise, and one of the most popular characters in the Star Trek universe. As you know, Leonard Nimoy, the actor who played Mr. Spock, passed away last week at the age of 83. He will be missed.

Is it really March already? At least this gives us an excuse to revisit Michael Penn’s album, March.

Come say hello to us on Twitter! We’re at @GWBLawfirm!

Our favorite legal tweet of the week:

New Suit Claims Helmets Turn Firefighters Into Bobbleheads

Every day, police officers, firefighters, and other first responders face the difficult job of protecting our well-being.  They are often placed in harm’s way with nothing to protect them other than their government provided safety equipment.  Providing the latest, most effective equipment is the least taxpayers can do to help protect these brave men and women.  A group of retired and active firefighters, however, has filed a new lawsuit, claiming that their equipment does more harm than good.

According to a report from the Tampa Bay Times, five St. Petersburg  city firefighters have filed suit in Pinellas-Pasco (FL) Circuit Court against Mine Safety Appliance Co. and Ten-8 Fire Equipment Inc., claiming that the helmets they were issued in 2010 were designed poorly and caused head and neck injuries.  Specifically, the firefighters allege that the 1044 Cairns model helmet, manufactured by Mine Safety and distributed by Ten-8, is uneven and causes musculoskeletal injuries.  Translation: These helmets allegedly turn the firefighters into life size bobble heads.

While the report is silent as to the nature of the injuries, we here at Abnormal Use can reasonably conceive how a weighty helmet could cause neck injuries.  After all, we are all prisoners of gravity and the hazards of top heaviness. Nonetheless, we question what alleged design defect in the 1044 Cairns model distinguishes it from any other helmet.  It seems as if any over-sized helmet would have the propensity to promote bobble head-like movement.  As such, even though the firefighters allege that this helmet is uneven, they might face some difficulty demonstrating that the injuries are the result of the 1044 Cairns and not repetitive trauma from prior models.  Further, it will also be interesting to see if this alleged problem is limited to the St. Petersburg department or whether it is more widespread.