Social Media Paves New Ground In Contaminated Food Cases

It is not uncommon for people to come down with a case of “food poisoning,” typically due to ingestion of Salmonella or E.Coli bacteria. It is also not uncommon to hear people suffering from food poisoning claim that they contracted the illness by eating a certain food product at a particular restaurant. While these origin theories may be correct, they are often difficult to prove unless the person can show that many people who also ate that same suspect food also became sick. Salmonella and E. coli symptoms typically manifest themselves anywhere from 12 to 72 hours after the contamination.  With such a variance in the time frame, the person could have been exposed to the bacteria in any number of ways other than the initially suspect food products.  For these reasons, potential claims against the culprit often face an uphill battle.

Social media, however, is coming to the rescue.  According the L.A. Times, a number of customers took to Yelp in March to warn others about their negative, salmonella-inducing experiences at Don Antonio’s, a popular West Los Angeles Mexican restaurant.  When at least 12 patrons complained of contracting salmonella, the L.A. County Department of Public Health conducted an inspection of the restaurant and allegedly discovered a number of serious safety code violations. The Department had previously given the restaurant an “A” rating. Two of those complainants have now filed suit against the restaurant, alleging product liability, negligence, breach of warranty, and negligent infliction of emotional distress.

In yesteryear, it was very possible that salmonella and E. coli outbreaks like this one could have flown under the radar. These days, because of Yelp and other forms of social media, it is much less likely that outbreaks will remain clandestine. As such, when a claimant points the finger at a particular restaurant when inflicted with food poisoning, it is now much easier to prove (or at least corroborate) the merits of those allegations.

New Suit Alleges IKEA Failed To Warn Of Falling Furniture

According to a report from the Daily Local News, Pennsylvania woman Jaquelyn Collas has filed suit against IKEA after her two year old son was crushed to death in his bedroom by a dresser she purchased from the Swedish furniture giant. The crux of the suit is that the 136 pound, six drawer MALM dresser lacked “sufficient or proper warnings or instructions” and failed to include “sufficient or proper hardware, tools and equipment” to secure the dresser to the wall which would have prevented it from falling. Callas alleges that IKEA knew of the tip-over hazards associated with the dresser and other vertical furniture.

In response to the suit, IKEA issued the following statement to media outlets:

All of us at IKEA express our sincerest condolences to the Collas family. At IKEA, the safety of our products is our top priority. All of our products go through extensive testing and are regularly evaluated. IKEA chests of drawers are safe for their intended use when properly assembled and permanently attached to the wall, in accordance with the warnings and instructions. The best way to ensure the stability of chests of drawers is to permanently attach them to the wall.

IKEA’s statement regarding the warnings appears to be supported by the current assembly instructions accompanying the dresser.  On the top of the second page of the instructions, the following warning is found (in 30 languages):

Important!

This furniture must be affixed to the wall with the enclosed wall fastener.

Different wall materials require different types of fixing devices.  Use fixing devices suitable for the walls in your home (not included).  If you are uncertain about what type of screw of fitting to use, please contact your hardware store.

Smack in the middle of the step-by-step instructions, you will also find this image:

M10103347.pdf

With the written warning and accompanying diagram, it appears that IKEA has at least attempted to warn of the danger of vertical furniture contrary to Collas’ allegations.  (Of course, we do not know when Collas purchased the dresser and is at least possible that the instructions were modified thereafter.)  Regardless, we question whether such warnings should be necessary in the first place. Essentially, the tip-over hazard associated with any piece of vertical furniture is a result of physics and the law of gravity.   While the average person may not be well-versed in the nuances of physics or know that the standard acceleration due to gravity is 9.8 meters per second squared, they should be aware of the general center-of-gravity principles in layman’s terms. Think Newton and his apple.

A related, but possibly more problematic issue, is that Collas may have a difficult time proving exactly how the dresser fell in the first place. Collas discovered the accident when she entered her son’s room and found him face-up, wedged between his bed and the dresser. Did the dresser fall on its own? Did it fall because the boy attempted to climb it? Did it fall due to some other unknown reason? Certainly, Collas’ fallback position will be that the dresser wouldn’t have fallen due to any reason had IKEA just told her to affix it to the wall. IKEA then counters that it did so as discussed above and circular argument enthusiasts rejoice.

At the end of the day, this is a tragic accident that could have been avoided.  We just question whether it was IKEA’s job to do so.

Friday Links

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Above, you’ll find the cover of Life With Archie #18, published way, way back in 1963. For many reasons, it is our new favorite. First and foremost, the publishers include the word “denouement” on the cover. You’ve got to love that bit. Second, the cover proclaims that the narrative shall be gripping, but the dialogue thereupon suggests otherwise. You have the prosecutor declaring in open court that Archie Andrews is guilty while Archie himself thinks to himself that he is innocent. Honestly, that seems rather routine for a criminal trial, no?

Podcast Question #1: Who is listening to the new Starlee Kine podcast, “Mystery Show”? The tagline: “A podcast where Starlee Kine solves mysteries.” This week, we investigated the first two episodes, and it’s a fun one. Check it out here.

Podcast Question #2: Who is listening to “Undisclosed,” the relatively new podcast dedicated to the Adnan Syed case (which was initially profiled on the very, very popular podcast, “Serial”)? Check it out here.

Attorney: Hand Over The Name CaseRails And Nobody Gets Hurt!

We here at Abnormal Use have a question for you. Any chance that you would come across a company named CaseRails and inadvertently think you had found a company named CaseWebs or CaseSpace? Neither did we. However, one misguided lawyer who owns trademarks for the latter entities thinks you might. He recently sent a cease and desist letter to CaseRails demanding that they fork over their company name and Internet domain name.

CaseRails is a small startup that offers a document management system designed to automate the process for drafting, storing, and reusing legal documents.  Sanford Asman, a trademark lawyer, claims that the name CaseRails infringes on his trademarks for the terms “CaseWebs” and “CaseSpace.” CaseWebs is purportedly a litigation support software owned by Asman.  It’s not clear that the name CaseSpace is being actively used Asman.

Apparently, Asman believes he’s got a corner on the market for any legal software names starting with the generic word “case.” His cease and desist letter can be read here. In the letter, he claims: “I take very seriously any third party attempts to use ‘Case’ formative marks in connection with web-based legal applications.” Maybe he should give LegalZoom a call and offer to help them pursue all those companies using names starting with generic word “legal.”

Luckily for the guys at CaseRails, Asman is generously willing to work out a resolution if they’d be so kind as to hand over the rights to the name CaseRails and the domain name CaseRails.com. We can understand that the guys at CaseRails might not want to spend valuable resources in a battle over their name. However, that is almost certainly what Asman is banking on.  We hope they do fight the matter as this thing is just down right silly.

Let’s Stop Saying “Attorney Work Product Rule,” Okay?

I have noticed several references in recent literature, memoranda, and legal journals to the “attorney work product rule.” It is beyond me why so many otherwise bright and knowledgeable people continue to refer to the Work Product Doctrine in this fashion. The Doctrine is, of course, not limited to attorneys, and in fact, really has nothing to do with attorneys specifically except that attorneys are one of the many representatives of a party whose work product and thoughts about litigation are protected.  Obviously, attorneys are the most common representatives to provide or prepare documents and tangible things that are prepared in anticipation of litigation or for trial, but the rule expressly applies to a party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). It further provides absolute protection against discovery of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

A surprising number of attorneys apparently incorrectly believe that the Doctrine does not apply unless, like the attorney-client privilege, a lawyer is somehow involved in the preparation of the materials in question.  Nothing could be further from the truth, and as a result, the Work Product Doctrine is much broader than the attorney-client privilege, and generally, much easier to sustain in discovery disputes.  As defense lawyers, we certainly do not want to do anything to incorrectly limit the scope and effect of the Work Product Doctrine, and all of us need to strive to broadly interpret the protection rather than narrowing it. Since defendants generally use lawyers and other representatives to analyze potential or threatened litigation, and plaintiffs less so (except in business and commercial litigation between corporate entities) the plaintiff’s bar generally attacks and tries to limit the Work Product Doctrine just as it has attacked the attorney-client privilege down through the years. These attacks need to be fiercely resisted and our courts encouraged to apply the Work Product Doctrine broadly to protect the doctrine to prevent what the U.S. Supreme Court correctly noted in Hickman v. Taylor as practicing law “on the wits of your adversary.”  Parties have no right to, and should not even request, disclosure of what the other side thinks about the lawsuit or the merits of the case regardless of which representative of the party expressed those views.

A Lawyer At Career Day? An Inspirational Journey Into The Minds of Fifth Graders

Recently, I was asked to speak at a local elementary school for Career Day.  The point of the program was to expose fifth grade students to a number of different career options while encouraging them to take school seriously at an early age. It is a worthwhile endeavor, to be sure. But as the program’s lawyer representative, it certainly was a challenge.  A member of the military, a professional hockey player, and a video game programmer had the easy task of making their jobs sound fun and exciting.  On the other hand, how does a lawyer, a civil litigator at that, impress a group of 10 and 11 year old kids? That was the daunting task before me.

To determine my baseline, I began by asking how many of the students knew what a lawyer actually was. Most of the students raised their hands. For those that did so, I then asked them to tell me what a lawyer does. Their response? Judge Judy. Not the response I sought, but at least I knew there was nowhere to go but up. I attempted to explain the legal profession with Judge Judy’s show serving as a backdrop of sorts, i.e. how the cases would have been prepared and tried had the litigants had legal representation.  As I feared, however, the actual Judge Judy is far more entertaining to fifth graders than the Judge Judy model I used.

So if Judge Judy wasn’t the answer, how could I possibly break through with these kids? How could I explain what lawyers do in terms that they could understand? I found myself at a complete loss, and I still had 10 minutes of my allotted time left to kill.  Searching for answers, I was saved by something I noticed on the classroom wall – the class rules.  That was my golden ticket.  What followed may have inspired many young minds to explore the legal profession – but also have earned me a spot on the teachers’ black list.  You be the judge.

The interaction went a little something like this:

ME:  So, what happens when you break one of these rules?

CLASS:  We get punished.

ME:  Who punishes you?

CLASS:  The teacher.

ME:  Well, what would happen if you had a lawyer?

CLASS: . . .

ME:  Let’s pretend you got accused of talking to a friend while the teacher is teaching.  You hire me to represent you.  What do I do?  I start by investigating the accusation.  I interview all of the potential witnesses. Those interviews might establish that no one actually heard you talking at all. Maybe the teacher was told that you were talking by John, who got his information from Kelly, who heard from Jennifer that you were talking. And, Jennifer might not be very credible because she has a long history of making false accusations and was on the other side of the room when she allegedly heard the offense.

Or, the investigation might reveal that you were actually whispering during class. The rule says no “talking” during class. Because “whispering” is technically not “talking,” maybe you didn’t break the rule after all.

With a strong defense in hand, we might have to take this case to trial. Even so, we might get a tip that all 12 of our jurors were spotted with bumper stickers on their cars which say, “Mothers Against Classroom Talking.” If that is the case, you are probably going down even if we have a strong defense, so we may need to explore settlement.

If we find out that you, in fact, were talking in the class and violated the rule, we go to your teacher and try to reduce your punishment. Even though the typical penalty for the rules violation may be 10 minutes of lost recess, we bargain for 5 minutes based on your apology and good behavior.

The hypothetical warranted a strong, positive reaction from the class.  Whether the reaction was the sound of bright, young minds being inspired to explore a legal career or that of minds spinning with new ideas on how to get out of rules violations is yet to be seen. The example was far from perfect and definitely overly-simplified the process. Nonetheless, what better way to explain discovery, statutory construction, and settlement negotiations to a fifth grade class? In any event, the kids seemed to have a better sense of what lawyers do following the presentation. On the other hand, the teachers were busy exploring the potential loopholes in their classroom rules.

 

 

Certified Question Answered – Chicken Nugget X-Ray Machines Are A Thing

We recently ran a post on a Chicago man’s lawsuit against McDonald’s, which alleged, among other things, that McDonald’s failed to test a chicken nugget for bone shards before serving the chicken nugget to him.  Therein, we asked the following tough questions:

How does one test a chicken nugget for bone shards before serving it to the customer? Is McDonald’s supposed to use the x-ray machine that TSA uses at the airport? Is there a chicken nugget bone shard test kit that we don’t know about?

We received a response from an unusual source. According to The Wall Street Journal’s Law Blog, there is actually a chicken nugget x-ray machine:

‘There’s very accurate X-ray detection technology to detect bones in chicken products,’ says Rich Cisek the chief operating officer of InspX Corp. a California-based manufacturer of X-ray inspection machines for the food and beverage industry.

Mr. Cisek told Law Blog that so-called ‘top-down’ X-ray machines, which collect images of food products zooming by on a conveyor, are well-suited for nugget inspections.

We stand corrected (and appreciate the author of that piece citing our original blog post on the topic).

That said, we here at Abnormal Use would like to ask a follow up question.  In a time when jobs are difficult to find, should we replace potential American food testing jobs with automation?  Reportedly, while “[e]mploying food tasters . . . may seem like an anachronism in the 21st century, . . . the profession has enjoyed a recent resurgence.” As noted by a recent New York Times article on the extravagant food testing expenditures for which the current president of Turkey is responsible, “[n]early every world leader . . . takes precautions in the matter of food safety . . . .”  The article goes on to say that the current president of Turkey employs ” five on-site experts . . . on duty for 14 hours a day, analyzing the president’s meals for suspicious substances . . . .”

If we seek to impose a duty on fast food chains to inspect their food before serving it to customers, shouldn’t we create some jobs in the process?  Our fear is that chicken nugget x-ray machines could lead to the extinction of a workforce of food tasters who have perfected the craft for centuries.  The point is, should we, just because we can?

Friday Links

policeplasticman

Above, you’ll find the cover of Police Comics #94, published way, way back in 1949. As you can see, it depicts a courtroom setting, and we’re a bit surprised that we’ve just now chanced across it after five years of searching for such covers. The noted hero Plastic Man is apparently on trial, as the cover asks, “Plastic Man . . . Guilty?” He’s obviously not doing himself any favors with his courtroom antics, and to be honest, we’re surprised the court allowed him to wear goggles during his trial.

Did you see that the Wall Street Journal’s Law Blog cited our post this week on defective chicken nuggets? We published our post – by intrepid blogger Kyle White – yesterday morning, and just a number of hours later, we learned that the folks at the WSJ had seen fit to link our piece in their own story. How about that? (Click here for our original post on the defective chicken nuggets and here for the WSJ Law Blog‘s piece).

There’s news on the now infamous Led Zeppelin “Stairway To Heaven” litigation! See here for more!

Our favorite tweet – and article – of the week comes from that publication of publication, The Onion. Who knew they riffed on products liability issues?

Is There A Duty To Test A Chicken McNugget?

A Chicago man recently filed a lawsuit against McDonald’s to recover damages incurred after he allegedly bit into a chicken nugget which contained shards of bone. Lawsuits over objects in food which are not supposed to be there are common, so no surprise there.  The interesting part is that the man has reportedly joined a cause of action for failure to test the chicken nugget:

The suit contends that McDonald’s employees failed to inspect and test the Chicken McNugget in question for bone fragments prior to serving it to Anderson.

This is where he is going to lose those initially sympathetic to his cause. How does one test a chicken nugget for bone shards before serving it to the customer? Is McDonald’s supposed to use the x-ray machine that TSA uses at the airport? Is there a chicken nugget bone shard test kit that we don’t know about?

On a personal note, I know that I have been using this purported duty to test for a while now to trick my daughter. I make her a sandwich, then tell her that I need to take a bite first to make sure it’s not poisoned. It works every time, probably because she is three. I’ve been concerned that any day now she’s going to detect the ruse and I won’t be able to perpetrate the scheme any longer. However, if this suit goes anywhere, I may be forced to continue to take a test bite of every sandwich before serving it . . . for liability reasons . . . .

Popehat Is Happy To Be Here, And We Are Happy He Is

Many thanks to our editor who sent me a link to the Popehat blog by California attorney Ken White. Mr. White and I have something in common: we have both been diagnosed with and treated for depression. I have written about that previously here on Abnormal Use, along with commentary on how lawyers are generally vulnerable to depression, suicide and substance abuse.

In his post, “Happy To Be Here,” Mr. White writes poignantly about his own struggles with both depression and anxiety and his psychiatric hospitalization. What a powerful story; he puts a needed face on an insidious medical illness.

Mr. White does not just describe the hopelessness and the struggle to find the right treatment. He also tells us what we can each do to get us through the tough times:

Ask for help. You can’t go it alone.

Don’t rule anything out.

Keep re-evaluating.

Think about your body along with your head.

Talk to people; you’re not alone.

Mr. White ends his article with these words: “I won’t ask you to be fine. Nobody’s fine. Be better. Reach out.”

Thank you, Mr. White.