The Rolling Stones Are Losing Their Insurance Battle

There really is no other way to begin this blog post than with the expected and obvious: the Rolling Stones have recently learned that “You Can’t Always Get What You Want.”  Or perhaps noting that they “(Can’t Get No) Satisfaction” would be apropos, as well.  But we digress. . . .  According to various media outlets, including the Chicago Sun Times, the iconic band’s recent insurance claim—a $12.7 million claim—was denied by insurance underwriters.  The Stones submitted the claim for reimbursement for concerts they were forced to cancel in Australia and New Zealand after lead singer’s Mick Jagger’s girlfriend L’Wren Scott committed suicide in March of this year.

Last month, the underwriters petitioned the federal court in Utah, Scott’s native state, to permit them to gather testimony and documents from Scott’s brother.  A federal judge granted the request a week later.  After the underwriters’ denied the claim, the Stones filed suit in the friendly confines of London.   Here is the crux of the issue: The $23.9 million insurance policy issued to the band purported to provide coverage for the possibility of concerts being canceled due to the death of the band’s family members.  Jagger and Scott’s lack of a legal union was not the reason for the insurance underwriters’ denial—indeed, Scott was apparently covered under the policy as Jagger’s longtime girlfriend.  Rather, the insurance underwriters denied coverage based on their contention that Scott suffered from a pre-existing medical and/or mental condition that voided coverage for her death under the policy.  The insurance company is also questioning Jagger’s claim that because of his depression following her death, he was advised by doctors not to perform for at least a month thereafter.

We here at Abnormal Use are somewhat surprised that it was the pre-existing condition issue which was the underwriters’ basis for denial and are curious as to whether the policy failed to include a suicide exclusion or intentional act exclusion.  In any event, it seems clear the band will not give up its fight easily—in fact, we can envision the Stones’ singing “Start Me Up” upon receiving news of the underwriters’ decision and subsequent lawsuit.  We will certainly follow up on the claim, the policy language and the underwriters’ legal reasoning as the case progresses.  In the meantime, we invite our readers to “Shine A Light” on the underwriters’ denial and insight or predictions regarding the case as it moves forward.

Veterans Day

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

To commemorate the occasion, we direct your attention to the cover of Army War Heroes #1, published way, way back in 1963.

Thank you again to our veterans for their service.

Four Loko Manufacturer Not Immune From Suit As Manufacturer of Alcohol

The father of a Four Loko drinker who was shot and killed by the police has been granted a second chance to pursue his claims against the drink manufacturer.  After the death of Ron Fiorini, a 23-year old college student, Fiorini’s father, Brett Fiorini, filed suit against City Brewing Company, LLC in the Superior Court of Fresno County (CA) and asserted negligence and strict liability claims.  Specifically, Fiorini alleged that Four Loko’s combination of alcohol and caffeine, as well as other stimulants, was unreasonably dangerous and increased the risk of violent and other high-risk behavior.  The circuit court granted City Brewing’s motion for summary judgment on the grounds that the company was protected by the civil immunity in California’s dram shop statutes.  Last week, a California appellate court reversed the judgment in favor of City Brewing.  The case is Fiorini v. City Brewing Co., LLC, No. F067045 (Cal. App. 5th Nov. 7, 2014).

We have written before on Four Loko lawsuits, but factually, this one offers a few new twists.  On the day of Fiorini’s death, he and some friends purchased two cans of Four Loko and a quantity of beer from a convenience store.  Thereafter, Fiorini drank the Four Loko and some beer and began acting agitated and disoriented.  Fiorini became delusional, grabbed a shotgun, and started shooting at a fence, exclaiming that “they” were coming for him.  When police arrived, Fiorini wielded the gun on the front porch and police opened fire.  The crux of the lawsuit is that had the Four Loko not contained caffeine and other stimulants, Fiorini would have lost consciousness due to his level of alcohol consumption.  Instead, he remained awake in his disoriented state.

On appeal, City Brewing argued that the trial court correctly granted its motion for summary judgment based on a California statute which protects the manufacturers of alcohol from liabilty for common consumer products, i.e. alcohol.  The Court, however, held that an alcoholic energy drink, which combines alcohol and caffeine, is not a common consumer product for the purpose of statutory immunity.

While we here at Abnormal Use recognize that the alcoholic energy drink is a fairly new phenomenon, we question whether the risks are not common knowledge.  People know the risks of alcohol.  They know the risks of caffeine.  It doesn’t take a chemist to presume what the risks may be of combining those two items.  After all, it is what probably drives most people to purchase Four Loko in the first place.  The Court rejected this so-called “deconstruction” approach, but it is certainly an approach we would have considered taking.

Now that the case has been remanded back to the trial court, we are interested to see what a jury may do with these claims.  Four Loko has had its share of bad press over the last few years.  It is now time to see whether that negative reputation holds up to a legal analysis.

Friday Links

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Above, you’ll find the cover of Daredevil #27, published just last year in 2013. As we’ve previously reported, Daredevil’s alter ego is Matt Murdock, a lawyer. On the cover of the issue above, though, we see (who we believe to be) Foggy Nelson, Daredevil’s law partner. How about that? He looks lawyerly, no?

We recently opened (officially) an office in Anderson, South Carolina. You can read more about that festive occasion here.

Well, according to Variety, NBC has canceled “Bad Judge.” Alas. You may remember that our own Nick Farr reviewed the pilot episode.

Yes, we here at Abnormal Use are planning to see Interstellar this weekend.

Here’s our favorite tweet of late (which although not legal in nature speaks much truth):

Airbag Defects Allegedly Causing Injuries by Shooting Debris

Earlier this month, the Florida police opened an investigation into an apparent stabbing of a woman.  Hien Tran was  found alone in her 2001 Honda Accord with neck lacerations following an accident.  The investigation took a strange twist when investigators discovered the alleged source of her injuries.  Investigators believe that a defective airbag exploded and projected metal debris at Ms. Tran which caused her injuries.

The airbags involved in Ms. Tran’s accident were manufactured by a Japanese company named Takata.  Takata’s air bags have been installed in millions of cars manufactured by numerous automakers, including Honda, Toyota, Nissan, Mazda, and BMW.  Investigators at the National Highway Traffic Safety Administration (NHTSA) are looking into whether the Takata airbags produced from 2001 to 2007 may have used a faulty propellant which can cause airbags to deploy with excessive force and project metal and plastic debris at the vehicle’s occupants.  This problem can apparently exacerbated in places like Florida with high humidity.

Although Ms. Tran’s case is garnering a lot of national attention, the problem with the Takata airbags has been a bit of an ongoing saga.  There were two fatalities that occurred in 2009, which are alleged to be related to faulty Takata airbags.  A third purportedly related death occurred in 2013.  In 2008, Honda began recalling certain vehicles with Takata air bags and has been gradually expanding the scope of the recall.  Apparently, Ms. Tran’s vehicle was one of those covered by the recall but had not been repaired.  According to reports, she may not have had notice of the recall because she bought the vehicle second hand.

The NTSHA has issued an “act immediately” warning to owners of affected vehicles to get their airbags fixed.  However, there may not be enough parts to immediately replace or repair the airbags in the millions of affected vehicles.  Some automakers concerned are addressing the issue first in warm and high humidity regions , but it will likely take some time before all the problematic equipment is repaired or replaced.

Colorado Federal Court Considers Motion to Dismiss in Knee Replacement Case

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other venues.  Recently, his piece, “Colorado Federal Court Considers Motion to Dismiss in Knee Replacement Case,” was published in an October 2014 issue of the Defense Research Institute’s The VoiceHere are the first two paragraphs of the article:

Recently, a Colorado federal court considered a motion to dismiss in a medical device product liability action arising from a plaintiff’s allergic reaction to a cobalt and nickel knee replacement system. See Haffner v. Stryker Corp., et al, No. 14-CV-00186, 2014 WL 4821107 (D. Colo. Sept. 29, 2014) (unpublished). Observing that there appeared to be “few medical device tort cases in Colorado,” the court addressed the defendant’s motion to dismiss the plaintiff’s four causes of action: strict product liability, negligent product liability, the breach of implied warranties of merchantability and fitness, and the breach of an express warranty.

The case arose after the plaintiff underwent a surgical procedure in which his left knee was removed and replaced with a knee system manufactured by Stryker Corporation. The plaintiff alleged that he was unaware of his apparent allergy to cobalt and nickel, certain components of the system. As a result of his allergy, he experienced a reaction that caused “pain, inflammation, swelling, bone loss, and limited mobility.” He ultimately underwent a revision surgery to ameliorate the issue and to replace the original knee system. The plaintiff filed a product liability lawsuit in the state court in Colorado, but as you might suspect, the defendants removed the case to the federal court.

You can read the rest of the article here.

The Coming Ebola Litigation?

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.

Fireball Whiskey Recall Leaves a Bitter(Sweet) Taste

Flooding social media sites of late was news of the overseas recall of Fireball Whiskey. Recently, some retailers in Sweden and Finland have pulled Fireball from their shelves due to the amount of propylene glycol found in the liquor. For those who don’t know about Fireball, it’s a cheap, but delicious, sugary sweet cinnamon liquor.  Of late, Fireball has taken college campuses, tailgates, and even weddings, by storm.  Need proof? According to Bloomberg Business, in 2013, Fireball posted $61 million in sales, up from $1.9 million in 2011. While Fireball has run into an issue in the European Union, it will most likely remain available in the United States.  Here, the FDA allows for a maximum content by weight of 5.0 percent of propylene glycol in alcoholic beverages.  However, the European Union only allows for a maximum level of .1 percent in final foodstuffs.

What is propylene glycol? According to the Agency for Toxic Substances & Disease Registry, propylene glycol is a synthetic liquid substance that absorbs water and, among other things, it is a base for deicing solutions. The FDA has classified propylene glycol as an additive that is “generally recognized as safe” for use in foods.  Further, according to the FDA, there is no evidence in the available information on propylene glycol that demonstrates, or suggests reason to suspect, a hazard to the public when they are used at levels that are now current or that might reasonably be expected in future.

On its website, Fireball states that the propylene glycol has been used in more than 4,000 food, beverage, pharmaceutical, and cosmetic products for more than 50 years and that propylene glycol is used in Fireball in very small quantities, less than 1/8th the amount allowed by the FDA.  Further, according to Mr. Fireball, “all Fireball formulas are absolutely safe to drink and the use of propylene glycol in Fireball creates no health risks whatsoever.”

Therefore, while it appears that the sale of the syrupy sweet liquor may have run into some hiccups in some Nordiac countries.  It does not appear as though the supply in the United States will dry up anytime soon.  We will continue to closely monitor the situation and update as necessary.

Friday Links – Halloween Edition

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Happy Halloween from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope that our lawyers readers will pause today from their depositions and drafting to celebrate the day, eat some candy, and seek out non-case related scary things. While we usually post legal tidbits at the end of each week, today is no ordinary edition of Friday Links. Today, as we have done in the past, we showcase the home of one of our law firm’s partners and the festive decorations he has prepared for the occasion. Take a look!

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You may remember that last year for Halloween we shared a similar round of photographs from this very same home. Compare and contrast them, if you wish!

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Please, everyone, be festive, and most importantly, be safe on this fateful Halloween night. We’d love to hear your Halloween stories, as well, so comment below, if you like.

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TV Review: USA’s “Benched,” Starring Eliza Coupe

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This past Tuesday night, the USA network aired the premiere episode of “Benched,” a new legally themed sitcom starring Eliza Coupe (“Happy Endings,” “Scrubs”) as an ex-corporate lawyer experiencing the trials and tribulations of life as a public defender. Created by Michaela Watkins and Damon Jones, “Benched” brings the fun back to the legal sitcom in ways many of its recent predecessors have failed.  While “Benched” is not a perfect depiction of the legal profession, lawyers, particularly those engaged in a criminal practice, will relate to the challenges faced by its PD protagonist.

Coupe plays Nina Whitley whose life as a prominent corporate attorney is derailed by a comedic in-office blow-up following her discovery that she failed to make partner.  Now plagued by the gossip surrounding her breakdown, Whitley finds herself with few employment options despite her impressive pedigree.  Reluctantly, she takes a job with the public defender’s office in an attempt to revamp her career, but in the process, rediscovers herself.

At least in the pilot, the focus is exclusively on Whitley and set primarily within the confines of the courtroom and the public defender’s office.  We assume, however, that the show may dive deeper into Whitley’s personal life in future episodes based on the groundwork set forth in the pilot.  Rounding out the cast are Jay Harrington as fellow public defender Phil Quinlan, Fred Melamed as Judge Don Nelson, Jolene Purdy as legal intern Micah, and Carter MacIntyre as Whitley’s ex-fiancé turned prosecutor Trent Barber.

The pilot sets the stage for Whitley’s career path.  Waiting to become the next partner at her law firm, Whitley discovers that the position has been given to her attractive yet less legally-qualified colleague.  Enraged by the news, Whitley unleashes an epic rant on her firm and co-workers which ends with her smashing a vase given to the firm by Sir Elton John himself.  Preceded by exaggerated rumors of her blow-up, Whitley emerges in the public defender’s office and immediately learns she is scheduled to be in court for numerous arraignment hearings five minutes later.  As if walking into court completely unprepared wasn’t bad enough, Whitley discovers that the prosecutor is none other than her ex-fiancé, now legal nemesis.  Frustrated after “losing” multiple requests for bail, Whitley finally uses her legal moxie to achieve having bail set at $1 for an alleged diaper thief, much to the chagrin of her nemesis.

We here at Abnormal Use are not criminal lawyers, and we certainly do not pretend to know the internal machinations of a public defender’s office.  ”Benched” goes out of its way to create a stark contrast between the work environment of those in the public sector from the cozy confines of a big law firm.  Just as many shows exaggerate the perceived “luxuries” of the firm life, we assume “Benched” took similar liberties with the PD’s office.  We seriously doubt the typical PD’s office mirrors the chaotic confines of a debt collection call center.  Nonetheless, many of the portrayals of the difficulties faced by lawyers in the public sector are well-founded.  Too many files without the time or opportunity to work them up as much as the lawyer would prefer is not just a story made for Hollywood.  Yet, like Whitley, lawyers make it work.

At its roots, “Benched” is a comedy and Coupe will certainly make you laugh.  For lawyers, the show is more than just a half hour of comedic relief.  Whether or not the message was intended, “Benched” serves as an excellent reminder of what makes this profession so great. Regardless of a lawyer’s practice area, there will always be more work that can conceivably be addressed.  Yet, when the lights come on in the courtroom, the skills take over and lawyers find a way to make each case look like it is the only one on his or her radar.  Like any great lawyer, Whitley finds a way to thrive in the face of insurmountable odds.  While the general public will love Coupe as an actor, lawyers will love Whitley as an attorney.  Sure, “Benched” takes some artistic liberties with the legal profession, but lawyers will certainly be able to relate to its shenanigans.

“Benched” airs on USA Tuesday nights at 10:30 pm EST.