Above, you’ll find the cover of Brik Jones: Attorney for Earth #1, published not so long ago in 2012.  It’s funny to think that there have been legal themed comic book covers brought into existence after we started this blogging thing. Wow. However, we must confess that we have never heard of Brik Jones, and we find it hard to believe that his client is Earth.  I mean, his client is the planet? Who would he present as his representative for a 30(b)(6) deposition?

Well, you might have  noticed that the site suffered a brief outage yesterday.  Rest assured, dear friends, we have rectified the issue, and it will trouble you no more.  (We were told it was a minor, but thankfully ephemeral, hosting issue.). Thanks to the eagle-eyed readers who first noticed the issue and brought it to our attention.  This blogging thing can get complicated!

Here is an interesting article from The Daily Texan, the official student paper of The University of Texas at Austin, detailing how the University enforces its trademark. (Hat tip: The Daily Texan Twitter Account.).

The Masters tournament may be over, but golf is still in the news here in the Deep South. An Ohio man, Jim Wiencek, has settled his suit against the Ocean Creek Golf Club in Fripp Island, South Carolina arising out of an alligator attack. According to the complaint in the matter, 80-year old Wiencek reached down to pick up his golf ball near a small lagoon on the 11th hole of the course when a gator emerged from the water and ripped off his right arm. The course allegedly did not warn him of the presence of the gator. Thereupon, Wiencek sued Fripp Island Resort and its affiliates, and, as noted above,  recently settled his claims for an undisclosed amount. The case is captioned Wiencek v. Fripp Island Resort, Inc, et al., No. 9:11-cv-127-MBS (D.S.C. 2011).

The accident obviously resulted in a horrific injury. Fripp’s liability, however, was questionable. Typically, property owners are not liable for wild animal attacks. But, the plaintiff contended this case was different in that Fripp was on notice of the gator’s presence and failed to warn others or take any measures to assure their safety. There apparently is no known precedent on the duty of golf courses to warn of the presence of alligators. Because the case settled prior to trial, we still do not know how the courts would handle the situation.

Whatever the case, we believe golfers should bear at least some of the responsibility in this situation. Even without warning signs, we would like to think golfers are aware of the presence of alligators in every pool of murky water in the low country. The fact that the dark and brackish condition of the water obscured visibility should be a sign that gators could be near. We recognize that the plaintiff is from the gator-free land of Ohio, but it doesn’t take an episode of Swamp People to be aware of an alligator habitat. The plaintiff was an avid golfer, playing on many of the world’s top courses, so we assume this wasn’t his first rodeo on the Carolina coastline.

To be fair, this case is not a situation in which the golfer attempted to retrieve his ball from the brackish water. The gator actually emerged from the water to initiate the attack. Nonetheless, Wiencek could have assumed the risk of an alligator encounter by going near the water. Admittedly, we here at Abnormal Use have the benefit of living in South Carolina. With that comes the knowledge of the local rule that any ball hit near the water garners a free drop in the fairway.

Here at Abnormal Use, we are all about online culture. Accordingly, we must comment upon a recent New York Times blog post by Nick Bilton entitled “Disruptions:  Digital Era Redefining Etiquette.”  Brought to our attention by a Twitter user, the article posits that the “worst offenders of all” are “those who leave a voicemail message and then email to tell you they left a voicemail message.” It’s true that few still listen to voicemail messages.  This trend likely frustrates many parents leaving messages for their children (as Bilton notes).

However, in litigation, it may actually be advisable to send a follow-up email after leaving someone a voicemail, particularly if that person is, intentionally or otherwise, making themselves overly difficult to reach. There are those with whom a lawyer must communicate on a case who do not often wish to return calls.  Perhaps it is an opponent who has failed to timely respond to discovery responses.  Perhaps it is a third party whose documents you have subpoenaed.  Perhaps it is a witness who is reluctant to appear for a deposition.  Perhaps it is an opposing counsel who simply has other priorities than the case at issue. Whatever the case, simply leaving voicemails, inevitably lost in the void, does not preserve one’s ability to argue later that one attempted to communicate with an individual.  Assume that one must later rely upon evidence that one attempted to reach out and communicate with such a person, whether it be in a motion to compel or otherwise.  Oftentimes, memorializing the fact that one left a message, particularly if it was ultimately unreturned, creates a record both of attempts to communicate and the recipient’s failure to respond.

Further, you may not initially suspect when you may need to later rely upon such evidence.  Occasionally, unforeseen issues surface, and you, the litigator, will be pleased that you created such a record of communications and attempts which you can later rely upon.

So there.

(Hat tip: Garance Franke-Ruta).

A few years ago, we wrote about a case involving an expert who didn’t conduct testing prior to rendering his opinions, thus ensuring that he could actually get the results he wanted to support his “findings.”  Today, we feature another episode in the sitcom we’ll call ”The Expert Who Wasn’t.” In Ho v. Michelin North America, Inc., No. 11-3334 (10th Cir. March 29, 2013), the plaintiff, Melinda Ho, appealed a district court order excluding her proposed tire expert and granting summary judgment to Michelin.  In 2007, Ms. Ho was injured in car accident when a car driven by Linda Lange suffered a left front tire belt and thread detachment, forcing the car into the oncoming lane of traffic and injuring Ho.  She brought a products liability case against Michelin, alleging defective design, defective manufacture, failure to warn, breach of warranty, and negligence. Thus began a comedy of errors, at least as far as the plaintiff’s experts were concerned.

Ho identified two experts to testify about the cause of the tire failure.  The first, Patrick Cassidy, a Ph.D. chemist, testified that the age of the tire was a major issue, and that age had “an effect” in the cause of the tire failure.  However, he testified that there were a number of potential causes of the failure, and that he would not testify that the age of the tire caused it to fail.

Internal monologue by the plaintiff’s attorney during deposition:  “Then WHY am I paying you?”

Cassidy also testified he had no scientific evidence that the tire was defectively manufactured and, although he identified a potential design defect, he could not testifiy that it caused the failure.  He admitted he was not a warnings expert and could not testify about that issue.  Also, not helpful to the case of the plaintiff’s attorney.

Enter expert number 2, William Woehrle.  After a Daubert hearing, was also excluded.  The Court, helpful as always, reminded us about the four, non-exclusive Daubert factors used in testing an expert’s admissibility in federal court:

1.  Whether the opinion at issue is susceptible to testing and has been subject to such testing;

2.  Whether the opinion has been subjected to peer review;

3.  Whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and

4.  Whether the theory has been accepted in the scientific community.

Here was the problem with Woehrle: he rested his opinion essentially solely on his credentials working in the tire industry for 40 years and 30 years of teaching accident investigation.  He had no experience designing tires, and the testing he did was minimal at best, and it was not the most accurate testing available for the product.  Furthermore, Woehrle’s methodology and general claims and opinions were “contrary to the generally accepted engineering literature.”  Such obstacles could not be overcome.

In the end, both of Ms. Ho’s experts were excluded by the trial court, a decision that the Tenth Circuit upheld.  Moreover, without expert testimony, the plaintiff’s case failed, and summary judgment for Michelin was affirmed.

Today is Tax Day. You all know what that means (especially if you have read the Wikipedia entry for “Tax Day”).  Above, you’ll find the cover of Tick: Big Tax Time Terror #1, published not so long ago in 2000. Here’s the description of the comic from Comicvine:

Yes, The Tick is way overdue for squaring his accounts with the government. The urgent demands of a super-hero life is no excuse for being late with your taxes. Share the terror as The Tick confronts the ultimate challenge, a menace beyond the power of even ten super-powered do-gooders. Chill and thrill to this cold sweat nightmare of the Tax Man!

I suppose an alternative name of the issue could have been “Battle of the Forms.”  (Whoa, that was a really bad Contracts joke.). Did you see that one of the monstrous tax forms is called the “U.S. Superhero Sidekick Excise Tax Return?

Our eyes are too poor to tell what the other forms are named.

Whatever the case, don’t forget to file your taxes today.

Above, you’ll find the cover of Miles Edgeworth: Ace Attorney – Investigations #4, published not so long ago in February 2013.
According to Wikipedia, Miles is Ace Attorney Phoenix Wright’s “long-time friend and first rival in the court room.” You may recall that we here at Abnormal Use mentioned Phoenix Wright way back in June of 2011. Whatever the case, here’s the plot of this issue, according to our favorite comics website, Comicvine:

Stranded in the middle of the mountains, Gumshoe and Edgeworth spend the night in a nearby hotel. The employees believe an ogre has been set free by a recent fire, and is terrorizing the guests! Is the hotel really a host for the occult, or is this just a novel scheme? Edgeworth, along with Gumshoe and Candy Holly, must uncover the truth before the entire hotel falls into ruin!

This does not sound like a typical case for any attorney. Oh, well.

Um, apparently, there is a show called “Vampire Prosecutor.” (Hat Tip: Adam Frazier).

The Minnesota legislature was doing interesting things in 1891, apparently.

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Little known fact: we here at Abnormal Use are avid golfers. We are not particularly good at the sport, but we do find golf to be a great escape from reality. As much as we love the game, however, we often find ourselves aggravated with golf’s slow pace – a condition made exponentially worse when you find yourself playing out of sand, trees, and water.

Thankfully, 2012 Masters Champ Bubba Watson has heard our cries.

Watson has teamed up with hovercraft expert Chris Fitzgerald to create the “hovercart” in order to improve on the limitations of traditional golf carts. What limitations, you ask? The inability to drive in sand traps and over water hazards, of course. The hovercart travels over a bed of air allowing it to easily travel over any surface. With a footprint pressure 33 times less than the human foot, the cart could theoretically travel atop those delicate Bermuda greens. Though, something tells us golf course superintendents are going to draw the line somewhere.

The hovercart is not yet in mass production, but it should be the remedy for many of golf’s ailments. No more “cart path” only rounds on rainy days. No more embarking by foot on the treacherous trek into deep sand bunkers. No more parking 30 yards away from greens. No more walking. Sounds perfect.

We do not know whether hovercarts will ever enter the mainstream. But, anything that eliminates all of that pesky walking from getting in the way of swinging a golf club gets our support. If we could just get Watson to solve our slice, golf will be near-perfect. We can dream.

(Hat tip: The Daily Beast).

The list of reasons to dislike airlines is long and familiar.  Ticket change fees, checked bag fees, bumped flights, false imprisonment on the runway, and the inevitable delays.  Now, a disgruntled United Airlines passenger is adding another item to his list: finding himself robbed of his frequent flyer miles.  A Maryland man has filed suit against United in federal court in Illinois claiming it shorted him on frequent flyer miles by using the straight line distance, rather actual distance, to calculate the credit for miles. Of course, litigation is necessary to resolve this dispute.

The lawsuit alleges that United breached its frequent flyer contract by not awarding them for miles actually flown.  According to the lawsuit, the passenger’s flight from Dulles Airport to Beijing International Airport actually measured in 7,276 miles.  However, he was awarded only 6,920 miles, which is the shortest straight line distance between the two airports.

A quick scan of the official rules for United Airlines’ frequent flyer program reveals no information as to how miles are calculated.  However, there is some vague language about being able to modify the “currently recognized” means of accumulation without notice.   When asked by The Cleveland Plain Dealer, a United spokesperson declined comment on how the miles are calculated, but we expect United will argue that the rules essentially allow them to calculate miles however they please.  United did state that it believes the lawsuit to be merit-less.

Given the low monetary value of the “missing” miles, the suit certainly appears frivolous.  It is not unreasonable for United to credit for a straight-line distance between origin and destination.  Other airlines apparently calculate miles the same way.  However, the question is, why doesn’t United just spell it out in the program rules?

In our litigious society, United should have seen this one coming from a “mile” away. Don’t sue us for our pun.

The Metropolitan Museum of Art (The Met) in New York City maintains one of the best art collections in the world.  To boot, it offers admission for a donation price of your own choosing.  The minimum donation is a mere penny.  The museum does, however, suggest patrons donate $25.   Apparently, three tourists are not satisfied with their $25 donation because they didn’t read the sign closely enough to realize that it was only a “recommended” donation.  Of course, a lawsuit was necessary to rectify this reprehensible situation. Here we go again.

As you might have guessed, the class-action lawsuit accuses The Met of duping the public into believing that the $25 donation is required for admission.  In so doing, the lawsuit claims that The Met uses misleading marketing and training of cashiers to violate an 1893 New York state law mandating free admission a certain of number of days per week. Apparently, a former museum supervisor will testify on behalf of the Plaintiffs that cashiers were trained to encourage the $25 dollar donation by advising patrons of the museum’s large costs.  Also, in 2010, The Met allegedly changed its signage from “suggested” donation to “recommended” donation.  Outrageous!

The Met has, of course, denied the allegations.  Perhaps the plaintiffs can make an issue of the 1893 law.  Arguably, requiring a one cent donation for admission violates that law.  However, a Met spokesperson claims “[t]he idea that the museum is free to everyone who doesn’t wish to pay has not been in force for nearly 40 years.”  Apparently, in 1970, the New York City Department of Cultural Affairs agreed to allow a required donation for admission so long as patrons could determine what amount they wanted to pay.

Regardless of the outcome of the suit, don’t feel too bad for The Met.  It has $2.58 billion investment portfolio and most of its donations come from non-admissions related donations.

On a related note, if you ever find yourself in New York during the spring or early fall, it is well worth it to shell out your penny for admission and head up to The Met’s Roof Garden Café and Martini Bar.  Unfortunately, the beers ($8.75) aren’t as good of a deal as the admission donation.

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.