Judge Orders Cease Fire in Battle of the Dukes

John Wayne

The legal dispute between Duke University and the estate of John Wayne, upon which we previously reported, has ended – for now.  The two sides have argued for years over the naming of certain goods and services. Most recently, John Wayne’s estate sued Duke University in federal Court in California seeking a judgment declaring that it could use The Duke name to market its own brand of whiskey. The trial court dismissed the action for want of jurisdiction after examining the “effects test” factors, which turn on whether a defendant aimed its wrongful conduct at California, whether the harm was likely to be suffered in the state, et cetera.  Judge Carter found that Duke University was aware of the Duke’s family’s presence in the state of California, but the Duke’s family was unable to show that Duke University intentionally directed its conduct at the state of California by filing oppositions to trademarks in the state of Virginia.

We doubt that we’ve seen the end of this dispute.  As John Wayne himself once said, “[a]ll battles are fought by scared men who’d rather be someplace else.”  This battle was no different.

(Hat Tip: Hollywood Reporter).

It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

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.

Pharmaceutical Companies Sued Over Marketing Of Pain Killers

Painkiller abuse has  become a big problem in the past decade, and now, three governmental entities are seeking to hold pharmaceutical companies responsible.  The City of Chicago and two California counties have filed separate lawsuits alleging that “aggressive marketing” by several pharmaceutical companies has purportedly led to addiction and abuse of painkillers by their taxpayers.  The named defendants are Jansen Pharmaceuticals, Purdue Pharma, Actavis, Endo Health Solutions Inc., and Cephalon. The core allegation in these suits is that the companies fraudulently downplayed the known risks of painkiller addiction in their marketing materials, which allegedly misled the public and led physicians to overprescribe the drugs.  This conduct allegedly costs taxpayers and the government millions of dollars in the form of unnecessary prescriptions and emergency medical care.  The City of Chicago’s complaint alleges that in Chicago alone there were over 1,000 ER visits attributable to painkiller abuse in 2009.

These lawsuits are an interesting attempt to regulate, through litigation, what is already one of the most heavily regulated industries in the United States.  Matters relating to prescription drugs typically fall under the jurisdiction of the FDA.  Moreover, federal laws and regulations already require that pharmaceutical promotional materials must be supported by substantial scientific evidence and must reflect a “fair balance” in describing the benefits and risks of the drugs.  See, e.g., 21 U.S.C. 352(a); 21 C.F.R. 201(e)(g).

Not surprisingly, the pharmaceutical companies are already angling to dismiss these lawsuits.  Earlier this month, they moved to dismiss the City of Chicago’s complaint on, among other grounds,  the ground that this matter should be decided by the FDA under the primary jurisdiction doctrine.  The primary jurisdiction doctrine is a judicial doctrine whereby a court tends to favor allowing an agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.

California High Court to Decide Duty in Take Home Asbestos Exposure Cases

In recent years, there have been a growing number of lawsuits in which it is alleged that someone developed mesothelioma as a result of exposure to asbestos fibers transported into the home by a relative.  An increasing number of courts have held that a premises owner owed no duty as a matter of law to the relatives and spouses of the worker who brought home asbestos. See, e.g., Bootenhoff v. Hormel Foods Corp., CIV-11-1368-D (W.D. Okla. Aug. 1, 2014) (finding premises owner had no duty to spouse and granting motion for summary judgment).  In California, there is a split on the issue, and it is anticipated that the California Supreme Court may soon resolve the split.

Campbell – No Duty to Take Home Exposure Plaintiffs

In May of 2012, the California Court of Appeal, Second District, Division 7, held that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business. Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 34, 141 Cal. Rptr. 3d 390, 405 (2012), as modified on denial of reh’g (June 19, 2012).

Kesner- Manufacturer has Duty to Take Home Exposure Plaintiffs

In May of 2014, the California Court of Appeal distinguished Cambpell and held that, while a premises owner has no duty to take home exposure plaintiffs, manufacturers do. Kesner v. Superior Court, 171 Cal. Rptr. 3d 811, 819 (Ct. App. 2014) review granted and opinion superseded sub nom. Kesner v. S.C. (Pneumo Abex LLC), S219534 (Cal. Aug. 20, 2014) (“in holding that a duty exists in this case, we emphasize the obvious—that the existence of the duty is not the same as a finding of negligence.”)

HaverCampell Was Correctly Decided

In June of 2014, the California Court of Appeal, Second District, Division 5, noted that “Campbell was correctly decided” and affirmed the trial court’s dismissal based on a premise owner having no duty to spouses and relatives in take home exposure cases.   Haver v. BNSF Ry. Co., 172 Cal. Rptr. 3d 771, 775 (Ct. App. 2014), review filed (July 15, 2014), review granted and opinion superseded sub nom. Haver v. BNSF R. Co., S219919, 2014 WL 4100140 (Cal. Aug. 20, 2014). In Haver, the court acknowledged the Kesner opinion, but noted that the issue before it involved only a claim of premises liability and that “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action.”  Id.

The California Supreme Court is set to take up the issue, and we are anxious to see how the issue is resolved.

(Hat Tip: @Legal_Alerts and Sedwick).

Salon Allegedly Offers Extra Hospitality – A Pot Cookie – With Its Hospitality Trays

Hospitality food tray skeptics should pay attention to this new California lawsuit. According to a report from CBS Los Angeles, 72-year old Jo Ann Nickerson has filed suit in the Los Angeles Superior Court against a San Fernando Valley hair salon after eating a cookie allegedly laced with marijuana. Nickerson alleges that she ate a cookie from a hospitality tray left for patrons. Shortly thereafter, she allegedly developed hallucinations, rapid heartbeat, confusion, disorientation, light-headedness, dizziness, blurred vision, tingling, headaches, and nausea. Blood tests allegedly found THC in Nickerson’s system. The suit asserts claims for negligence, strict product liability, and negligent infliction of emotional distress.

Not much is known at this time apart from that stated in the pleadings. Nonetheless, we here at Abnormal Use have plenty of questions. For starters, how is Nickerson going to prove that she ingested THC from these hospitality cookies? We are suspicious of gratuitous, unsealed food for a variety of reasons, but the possibility of infused drug cookies has never previously occurred to us. (Of course, we’re in the Carolinas, not California.).  Was Nickerson’s cookie the only pot-cookie in the batch? If not, wouldn’t others have reported sharing similar symptoms? If it was the only one, how did it get there? It seems unlikely that a fellow patron would have a pot-cookie in his/her pocket that could easily disguise itself amongst the other cookies already placed upon the hospitality tray. What the pot cookie preserved? Is there a spoliation of evidence issue? It will be interesting to see how this all unravels.

These marijuana suits become even more intriguing now that marijuana is legal either recreationally or medically in several jurisdictions. If marijuana were legal in California for recreational purposes, would this lawsuit have the same punch, if true? Certainly, the effects were unwanted as Nickerson didn’t choose to ingest THC. In fact, she claims to have never smoked marijuana in her 72 years of age. But, do these cases have the potential to morph into something analogous to second hand smoke claims as society becomes more tolerant of marijuana? Or will the long held taboo still affect these cases post-legalization? Today, this thought is nothing more than idle speculation. In the future, who knows?

Tech Giants’ Anti-Poaching Settlement Rejected In California Federal Case

“Not in my house!”  That is essentially what U.S. District Judge Lucy Koh recently said in rejecting a proposed settlement agreement in a federal case pending in California between several Silicon Valley tech giants and a class of tech employees who claimed that the companies conspired to suppress their wages.  As we here at Abnormal Use previously reported in April, the companies (including Apple, Intel, and Google) and the tech workers agreed to settle their dispute for approximately $325 million.  According to Judge Koh, that settlement amount ”falls below the range of reasonableness.” Once the plaintiffs’  lawyers take their slice of the pie, the settlement would have provided the class members just over $3,500.  In reaching the conclusion that such an amount was unreasonable, Judge Koh noted that other class members settled the same claims last year against Pixar and Lucasfilm Ltd. more money per plaintiff, despite the fact these current plaintiffs had newly discovered evidence that made their claims even stronger.  The order also notes that to reach the same level as the previously settling class members, the current class members would need to receive $380 million. Check out the order’s conclusion:

This Court has lived with this case for nearly three years, and during that time, the Court has reviewed a significant number of documents in adjudicating not only the substantive motions, but also the voluminous sealing requests. Having done so, the Court cannot conclude that the instant settlement falls within the range of reasonableness. As this Court stated in its summary judgment order, there is ample evidence of an overarching conspiracy between the seven Defendants, including the similarities in the various agreements, the small number of intertwining high-level executives who entered into and enforced the agreements, Defendants’ knowledge about the other agreements, the sharing and benchmarking of confidential compensation information among Defendants and even between firms that did not have bilateral anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the anti-solicitation agreements. Moreover, as discussed above and in this Court’s class certification order, the evidence of Defendants’ rigid wage structures and internal equity concerns, along with statements from Defendants’ own executives, are likely to prove compelling in establishing the impact of the anti-solicitation agreements: a Class-wide depression of wages.

In light of this evidence, the Court is troubled by the fact that the instant settlement with Remaining Defendants is proportionally lower than the settlements with the Settled Defendants. This concern is magnified by the fact that the case evolved in Plaintiffs’ favor since those settlements. At the time those settlements were reached, Defendants still could have defeated class certification before this Court, Defendants still could have successfully sought appellate review and reversal of any class certification, Defendants still could have prevailed on summary judgment, or Defendants still could have succeeded in their attempt to exclude Plaintiffs’ principal expert. In contrast, the instant settlement was reached a mere month before trial was set to commence and after these opportunities for Defendants had evaporated. While the unpredictable nature of trial would have undoubtedly posed challenges for Plaintiffs, the exposure for Defendants was even more substantial, both in terms of the potential of more than $9 billion in damages and in terms of other collateral consequences, including the spotlight that would have been placed on the evidence discussed in this Order and other evidence and testimony that would have been brought to light. The procedural history and proximity to trial should have increased, not decreased, Plaintiffs’ leverage from the time the settlements with the Settled Defendants were reached a year ago.

The Court acknowledges that Class counsel have been zealous advocates for the Class and have funded this litigation themselves against extraordinarily well-resourced adversaries. Moreover, there very well may be weaknesses and challenges in Plaintiffs’ case that counsel cannot reveal to this Court. Nonetheless, the Court concludes that the Remaining Defendants should, at a minimum, pay their fair share as compared to the Settled Defendants, who resolved their case with Plaintiffs at a stage of the litigation where Defendants had much more leverage over Plaintiffs.

(Quotations and citations omitted).

This ruling is not at all surprising.  As we noted in our initial coverage, given the number of employees involved the settlement amounts to peanuts compared what the alleged conspiracy likely cost the workers.  We’re going to go out on a limb and guess that the class members and the defendants reach new deal for exactly $380 million. The order in question is In re High-Tech Employee Antitrust Litigation, No.: 11-CV-02509-LHK (N.D. Cal. Aug. 8, 2014).

Former Oppressive Dictator Sues Video Game Creator For Portraying Him As An Oppressive Dictator

Noriega

We recently blogged about troubled actress Lindsay Lohan’s lawsuit against a video game creator who allegedly misappropriated her likeness and used it for profit.  Apparently, she is not the only public figure who has been recently targeted by a video game company.  Reportedly, former Panamanian dictator, Manuel Noriega, has filed suit in California state court against video game creator Activision Blizzard for using his likeness in Call of Duty: Black Ops II.  Noriega is apparently the subject of various fictional missions within the video game that include historical footage and “real-life characters in Cold War scenarios, including Oliver North.”

Noriega, who is currently serving out a prison sentence in Panama for “drug trafficking, money laundering, and killing political opponents,” alleges in his lawsuit that, among other things, the defendant “damaged his reputation” by portraying him “as a kidnapper, murderer, and enemy of the state.”  For these alleged wrongs, Noriega seeks damages, to include a share of the profits from sales of the video game. He also demanded a jury trial!

Now, quite frankly, this is a deposition that we would like to see (assuming that the case makes it to the discovery phase and that Noriega, currently a prisoner in Panama, testifies in any way, shape, or form). We’re amused that in his Complaint, in the “Parties” section, Noriega mentions that he is “an individual residing in Gamboa, Panama,” without referencing that he is, in fact, in prison. If he is deposed, we would ask that defense counsel please question him about the punk rock and heavy metal music that was played during Operation Nifty Package back in the day. But that’s just us. Oh, and here is the complaint if you would like to read it.

An unrelated confession: The Activision game our editor played was Pitfall! for the Atari 2600.

The Range Feud 2: The Dueling Dukes

The Range Feud 2

Famed actor John Wayne was born Marion Robert Morrison, but he was perhaps best known for his nickname, “The Duke.”  The Duke personified the American Wild West.  He shot and strung up bad guys, fought his way out of tight spots, and generally exhibited a level of awesome manliness that inspired generations of American men.  The Duke also enjoyed his whiskey, and his family recently launched a “Duke” brand whiskey, “inspired by bottles from John Wayne’s personal whiskey collection, preserved for over 50 years and only recently discovered.”  Sounds great, right?  Well, not to everyone.

Reportedly,  Duke University recently filed objections in the trademark office to prevent the whiskey from using the “Duke” name, alleging that doing so will ”’cause confusion and dilution’ that hurts the school’s recruiting and reputation.”  The Duke’s family, which has filed a lawsuit of its own in California, denounces Duke University’s arguments as “ludicrous,” and argues that “[Duke University] ‘has never been in the business of producing, marketing, distributing or selling alcohol,’ [but the school] ‘seems to think it owns the word ‘Duke’ for all purposes and applications.”

It will be interesting to see how this one turns out, as both sides have some interesting arguments.  While the outcome is not clear, one thing is. Duke University should count its lucky stars that it is dealing with the family and not the Duke himself, because the Duke didn’t believe in lawsuits:  “Out here a man settles his own problems.”

Lindsay Lohan Alleges That Grand Theft Video Game Steals More Than Autos

Lacey Jonas

Apparently, if believe the news, pro se Plaintiff Jonathan Lee Riches isn’t the only person to have fallen victim to “Batman and identity robbin.”  Troubled actress Lindsay Lohan recently filed suit against the makers of the Grand Theft Auto V video game alleging that they improperly used her likeness in a “a look-alike side mission.” The character in question is named Lacey Jonas and begs the main character for a ride so that she can avoid the flock of paparazzi chasing her. This is not Lohan’s first legal action involving an alleged theft of her likeness.  In 2010, Lohan sued E-Trade in connection with a baby’s reference to “that milkaholic Lindsay” during an E-Trade ad aired during the Super Bowl.  In 2011, Lohan sued Pitbull for a reference in one of his songs to having it “locked up like Lindsay Lohan.” It will be interesting to see how this one turns out.  We at Abnormal Use are thankful to Lindsay for the material.  Keep it coming!

(Hat tip: FindLaw).