James Brogdon and Lindsay Joyner Named “Stars of the Quarter” by the South Carolina Bar’s Young Lawyers Division

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. are pleased to announce that attorneys James Brogdon and Lindsay Joyner have been honored by the South Carolina Bar’s Young Lawyers Division as “Stars of the Quarter.”  The award recognizes Brogdon and Joyner for their contributions and dedication to the Young Lawyers Division during the fourth quarter of the 2014-2015 year. Lindsay, you may recall, is a writer here at Abnormal Use, and you can read her past posts here.

Friday Links

For some reason or another, our WordPress platform is not allowing us to upload images today. Alas! What are we to do?

A question: Will “Ed,” the early 2000’s television show about the bowling alley lawyer, ever arrive on DVD?

Why aren’t you following Abnormal Use on Facebook and Twitter? You can do so here and here!

Our favorite legal tweet of late revisits a familiar theme:

Indiana Federal Court Remarks Upon Social Media Evidence Authentication

As you know, we here at Abnormal Use often remark upon social media evidence in litigation and attempts to authenticate such evidence in an employment discrimination case.

Here are some thoughts from the U.S. District Court for the Southern District of Indiana on social media evidence authentication:

These exhibits purport to be Facebook conversations between Plaintiff and [the defendant’s former] employees in support of her reduction in force allegations. She appears to have re-typed the conversations on clean sheets of paper and submitted them as her evidence. There is no documentation from Facebook detailing these conversations or any other indicia of reliability; consequently, the exhibits are unreliable and will not be considered.

See Maddox v. Meridian Sec. Ins. Co., No. 1:13–cv–01551–RLY–DML (S.D. Ind. June 30, 2015).

Ouch. As you might suspect, the Plaintiff was pro se.

The Curious Case of the Renaissance Fair Juggler

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

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

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

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

Shareholder Derivative Suit Against GM Over Ignition Switch Defect Dismissed By Delaware Chancery Court

Reportedly, GM Shareholders filed suit against the company in Delaware Chancery Court, alleging that the “board of directors did not perform its duty in preventing the mounting losses from the sale of vehicles with faulty and deadly ignition switches.” Specifically, the shareholders sought to recover “losses due to expenses, fines, lawsuits and damages to the company as a result of the 119 deaths and 234 injuries associated with faulty parts and a huge and costly recall.” GM filed a motion to dismiss, which was granted by Delaware Chancery Court Judge Sam Glasscock III.  Judge Glasscock found that “the GM board ‘did not consciously fail to monitor’ or oversee GM operations and thus he could not find ‘substantial likelihood of personal liability on the part of a majority of the board.'” Judge Glasscock also “concluded GM had adequate risk-assessment systems in place and there were not obvious problems or ‘red flags’ that the board knew of but ignored, nor was there evidence of bad faith on the part of the directors.” Apparently, Judge Glasscock’s decision could have impact outside of the Delaware case, as there are three “similar cases” pending in Michigan, which were “waiting for the outcome of the Delaware case.” We’ll keep our eyes on these cases for you.

Alabama Federal Trial Court Defers to Alabama Supreme Court on Duty and Causation in Take Home Asbestos Cases

On June 22, 2015, Judge C. Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama, Northeastern Division, certified two questions to the Alabama Supreme Court in a take-home asbestos case.  The order is located here. Certification of the two questions followed a bench trial, in which the the Tennessee Valley Authority (TVA) was the sole remaining defendant.  The facts were similar to most take home asbestos cases.

Barbara Bobo was diagnosed with, and eventually died from, malignant pleural mesothelioma, which was allegedly caused by exposure to asbestos fibers on her husband’s clothing. Suit was filed by Ms. Bobo prior to her death, and following Ms. Bobo’s death, Ms. Bobo’s daughters, co-personal representatives, were substituted as Plaintiffs.  The Plaintiffs alleged that Ms. Bobo’s husband brought home asbestos fibers on his clothing while working at a TVA nuclear facility in Alabama from 1975 until 1997, and that Ms. Bobo was exposed to those fibers while laundering Mr. Bobo’s clothing, among other ways. During the time Mr. Bobo was a TVA employee, he performed a variety of tasks at the TVA facility, some of which included assisting insulators with work that required cleaning up and otherwise manipulating asbestos. Following the bench trial, Judge Smith found that “[t]he preponderance of the evidence presented at trial established that a significant quantify of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue” at the TVA facility.  The Court also found that Mr. Bobo passed away in 1997 due to “lung cancer induced by asbestosis.”  It was undisputed that Ms. Bobo could have been exposed to asbestos from sources other than the TVA.

In order to decide the case, Judge Smith required clarity on the law of duty and causation in a take home asbestos case.  Accordingly, Judge Smith certified two questions to the Alabama Supreme Court:

  1. Whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to a toxic agent, such as asbestos, used during the course of the property owner’s business? and
  2. What causation standard applies when multiple exposures to a toxic agent, such as asbestos, combined to produce the Plaintiff’s injury?

The parties’ arguments pertaining to the duty issue centered around major take home cases in other states, including California’s Campbell, which we discussed here.  On the causation issue, the Plaintiff argued that the “substantial contributing factor” test should apply, while TVA argued for a more stringent standard, such as the standard set forth in Lohrman, which we discussed here and here.

For obvious reasons, the result of this case will have an enormous impact on take home exposure cases in Alabama.

Happy Fourth of July!

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Happy Fourth of July from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.!

We hope you have a festive and safe holiday weekend.

We’ll see you again on Monday.

(By the way, above, that’s the cover of Superman #24, published way, way back in 1943. How about that?).

Friday Links

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that you all are enjoying the beginning of the July 4th weekend. In honor of the occasion, our offices are closed today. Above, you’ll find the cover of Roy Rogers and the 4th of July Bandits #1. We’re not certain of the plot, but it seemed like a somewhat appropriate cover for today’s edition of Friday Links. Fear not, we’ll find a better one for tomorrow’s post! If the website ComicVine is to be believed, this comic book was first published in 1990, many decades after the time we would have thought it would have been.

We hope everyone has a safe holiday weekend!

Our favorite legally themed tweet of the week focuses upon iTunes:

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

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

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

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

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

CSI: Chicken Tenders

Earlier, when we covered the KFC deep fried rat situation, we warned you to be skeptical, and at least for now, we were right. Apparently, Mr. Dixon, who made the allegations regarding the rat-looking chicken tender, did, in fact, retain a lawyer. That lawyer turned over the disgusting piece of chicken to KFC for an independent lab analysis, which determined that the breaded mystery meat was, in fact, chicken. Apparently, KFC now wants an apology.

So who won? Mr. Dixon was ultimately wrong, so we suppose that KFC technically won, but that is one ugly piece of chicken. We would think that KFC would take this time to apologize for serving chicken that so resembled a rat that an independent lab had to verify that it was, in fact, chicken.  If you want to find out more about these issues and KFC, you can click here, here, here, or here.