Friday, April 1, 2011

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds

Although though we were perplexed to see a federal court address the issue, we can’t say we disagree with today’s opinion from the U.S. District Court for the Western District of South Carolina, which found that the three Star Wars prequels were “unreasonably dangerous and defective” as a matter of law. See Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011). After hearing cross motions for summary judgment, the court denied the Lucas Defendants’ motion for summary judgment and granted the Plaintiff’s motion finding no genuine issue of material fact as to the films’ defects.

The facts were these: In 2007, Plaintiff Danny Kurtz found himself at his local video store in Seneca, South Carolina browsing through the racks of new DVDs. His young seven year old son, Milo, pleaded with his father to buy him some action movies. Dutifully acquiescing to the request, Plaintiff bought him the prequels: 1999′s The Phantom Menace, 2002′s Attack of the Clones, and 2005′s Revenge of Sith. At the time of the purchase, neither the Plaintiff nor his son had seen the films. (“Somehow, I made it through the last decade without seeing those movies,” the Plaintiff testified at his deposition, although he later acknowledged his familiarity with the films’ generally poor reviews.). Although the purchase was “against his better judgment,” he relented only because of the joy he felt his child might experience in being introduced to the Star Wars universe, a delight the Plaintiff recalled from his own youth in the early 1980s. After a marathon weekend viewing of all three prequels, the Plaintiff and his son experienced nausea, confusion, light-headnesses, shortness of breath, tinnitus, and a “foreboding sense of ennui.”

Plaintiff brought suit individually and on behalf of his minor son against George Lucas and several corporations, asserting various tort theories, including negligence and strict products liability. Plaintiff also asserted a novel “tortious interference with childhood memory” cause of action on his own behalf, arguing that the release of the prequels had destroyed his ability to reminisce his own younger days and his youthful enjoyment of popular culture. (The alienation of affection claims of Plaintiff’s spouse, Carrie, were settled for an undisclosed sum.).

In their joint answer, the Lucas Defendants asserted the affirmative defenses of contributory negligence, assumption of risk, unclean hands, and equitable estoppel, essentially arguing that Plaintiff knew or should have known of the films’ lack of artistic merit and was thus barred from asserting any tort claims based upon his viewing of same. See In re: The Last Airbender, 523 F. Supp. 2d. 147 (N.D. Ga. 2010); In re: Ishtar Litig., 111 F.2d 102 (9th Cir. 1988).

In denying the defense motion for summary judgment, the court rejected the Defendants’ reliance on In re: Bob Dylan Live Performance Litig., 867 F.3d 539 (S.D.N.Y 2006), in which that court held that a once talented artist can devolve and become so well known in the community as a disappointment that damages are not recoverable as a matter of law. See also Shyamalan v. United States, 543 F.3d 129 (6th Cir. 2008). In distinguishing Dylan, the South Carolina court observed that while Bob Dylan’s decline had been gradual over a period of years, the decay of the Star Wars franchise was sudden and immediate (and preceded by nearly two decades of engendered good will prior to the prequels’ release in 1999).

The court then granted the Plaintiff’s motion for summary judgment, noting in a single paragraph order that the films were “unreasonably dangerous and defective as a matter of law.”

The case is also notable for a few other procedural rulings made by the court:

  • The court quashed the Defendants’ deposition subpoena to actress Natalie Portman, who the court decided had “already suffered enough.”

  • Finding the issue nonjusticiable and incapable of resolution by the judiciary, the court denied Plaintiff’s request to issue a declaration that Han Solo had, in fact, shot first.

  • Earlier in the case, the court had dismissed Plaintiff’s state law Unfair Trade Practices Act claim which was premised upon the casting of Hayden Christensen as Anakin Skywalker in the second and third prequels. In so doing, the court noted that the Unfair Trade Practices Act claim was merely an attempt to assert an improper negligent casting cause of action, a claim which the South Carolina Supreme Court had only last year abrogated in the Watchmen litigation. See Moore v. Snyder, 572 S.E.2d 492, 652 S.C. 19 (2009).

  • The court denied the Defendants’ request to consolidate the case with a similar North Carolina matter arising from a Charlotte family’s viewing of 2008′s Indiana Jones and the Kingdom of the Crystal Skull.
posted by Jim Dedman
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Thursday, April 1, 2010

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds

We here at Abnormal Use are puzzled and alarmed at a very recent opinion by the Fifteenth Court of Appeals in Texas, which was released this very morning and quickly forwarded to our inbox by a reader in Anarene, Texas. In that case, the Court of Appeals affirmed a ruling by the trial court, which had permitted an expert to opine that a candy bar consumed by the Plaintiff was not, in fact, satisfactory, and was therefore, unreasonably dangerous and defective. This opinion’s rationale, if adopted elsewhere, has the potential to convert untasty sweets into causes of action to be wielded against unsuspecting candy manufacturers.

The case at issue is Arthur Slugworth v. Mars, Inc., — S.W.3d —, No. 10-48-15162342 (Tex. App. – Corsicana, April 1, 2010, no pet. h.). Slugworth, the Plaintiff, purchased a Snickers bar at a retail store in Texas after a harrowing road trip. He bit into the candy and later testified that he was “rather alarmed that the Snickers bar did not, as promised by advertisements, satisfy me.” As a result of the ingestion of the allegedly unsatisfactory candy bar, Plaintiff suffered extended bouts of melancholy, coupled with an occasional conflagration of ennui. He brought suit in state court under various theories of recovery, including strict products liability, intentional infliction of emotional distress, alienation of affection, and the offensive use of laches. The Plaintiff offered the expert testimony of one Violet Beauregarde, a candy expert, while the defense invoked “the nougat defense,” based on the old English common law rule that products containing a certain combination of sugar, honey, and hazelnuts cannot be subject to strict liability claims.

The jury found the candy bar to be unreasonably dangerous and defective and awarded the Plaintiff $2.13 million dollars in actual damages and twice that amount in punitives. The verdict was largely based on the testimony of Beauregarde, who opined that to a reasonable degree of confectionery certainty, the candy bar at issue was “yucky.” Mars, for its part, appealed the verdict, arguing the trial court erred by qualifying Beauregarde as an expert under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), in which Texas adopted its own version of Daubert.

The appellate court rejected Mars’ first point of error that Beauregarde was not sufficiently credentialed to testify as an expert. Although Mars sought to exclude her based on her only having attended Greendale Community College and not some august scientific institution, the court noted that experience in the field was as important as a degree. In so doing, the court pointed to Beauregarde’s testimony that she had “consumed, and enjoyed, candy for many years, as far back as her childhood, and had never had an unpleasant experience with sweets.”

The court also dismissed Mars’ second point of error, in which it argued that Beauregarde’s testimony was unreliable. Beauregarde, Mars argued, had not tasted the particular candy bar at issue but had instead sampled an exemplar bar. Further, Mars pointed to the fact that Beauregarde cited to no peer-reviewed articles or epidemiological studies which established that a Snickers bar was incapable of satisfying a consumer. However, despite these arguments, the court found Beauregarde had indeed satisfied the reliability criteria.

The trial court had also thwarted Mars’ attempt at impeachment of Beauregarde over a past indiscretion involving carob, but the appellate court found Mars had waived that issue.

Watchdog groups in Texas are closely watching this case as it makes its way to the Texas Supreme Court, which in the past has offered some conflicting jurisprudence in this area, including Wonka v. Wonka, 472 S.W.3d 1012 (Tex. 2008) and In re: Bertie Bott’s Every Flavour Beans, 388 S.W.3d 999 (Tex. 2006). What happens next, no one can predict.

Joseph Throckmorton, outside counsel for the candy manufacturer, sighed when reached on his cell phone early this morning for a comment. He indicated that he has no further plans to engage in confectionary cases and now plans to dedicate his practice to the Soylent Green litigation, in which it is alleged that the foodstuff at issue contains certain undisclosed ingredients.

posted by Jim Dedman
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