Dismissal Of Erection-Causing Motorcycle Lawsuit Affirmed On Appeal

When men reach a certain age, they purchase sports cars or motorcycles to make them feel younger. The “mid-life crisis,” if you will.  According to the allegations in a recent lawsuit against BMW, this phenomenon took an entirely new angle for one California man.

As reported by The Marin Independent Journal, a California appellate court affirmed the dismissal of a 2012 lawsuit filed against BMW North American and Corbin-Pacific Inc., a manufacturer of motorcycle seats. In the suit, Henry Wolf alleged that he suffered from a multi-day erection after riding his 1993 BMW motorcycle for two hours allegedly due to vibrations stemming from the “ridge-like” seat. The suit contained product liability, negligence, and negligent infliction of emotional distress causes of action. None of the claims were properly before the court, apparently. The trial court previously found in favor of BMW and Corbin-Pacific due a lack of evidence supporting Wolfe’s claims. Likewise, the appellate court found that the appeal “fails to comply with the rules of appellate procedure” and “contains no intelligible argument.” As a result, the dismissal was affirmed and Wolfe was ordered to pay the defendants’ costs on appeal.

We don’t know what to make of the merits of this case. This is the first we have heard about a motorcycle inducing a prolonged erection. At the trial level, Wolfe’s urologist, Dr Jack McAninch, did, in fact, testify that Wolfe suffered from priapism, a condition involving a persistent erection. Likewise, Wolfe also offered testimony from a neurologist, Dr Jonathan Rutchik, that it was possible for vibrations from a motorcycle to cause priapism (this testimony was apparently excluded).

There is certainly an infinite number of jokes we could make about the relationship between motorcycles and the male anatomy. But, hey, we are professionals.

Exploding E-Cigarettes: The Combination Of Batteries And Heat Has Expected Result

Recently, electronic cigarettes, battery-powered vaporizers which simulate the feeling of smoking without burning tobacco, have taken the tobacco industry by storm. While they claim to be a new, “safer” alternative to traditional cigarettes, the benefits and health risks of e-cigarettes remain uncertain. Perhaps the more immediate safety risk, however, is not with the effects of inhaling vaporized nicotine, but rather, with placing a battery-powered device in one’s mouth. According to a couple of California men, such a risk resulted in their e-cigarettes exploding.

As reported by The Bakersfield Californian, Vincent Garza has filed suit against e-cigarette manufacturer, Flawless Vapes and Supplies, LLC, as well the stores at which he purchased the e-cigarette and the battery charger, claiming that he suffered severe injuries to his mouth, tongue and finger as a result of an exploding e-cigarette. Gregory Phillips is also filing suit because his e-cigarette allegedly exploded in his pocket, causing severe injuries to his leg. The suits allege that the manufacturing and design of the e-cigarettes does not take the appropriate measures to ensure that the devices are safe.

Obviously, no consumer product should be placed on the market if it explodes when operated properly. Nonetheless, we here at Abnormal Use can’t say we are even remotely surprised by these allegations. E-cigarettes typically have a heating element used to atomize the “e-liquid” solution to create the vapor. Heat + battery + mouth would seem to equate to a dangerous proposition. Even if e-cigarettes are “safer” on the lungs than traditional cigarettes, it seems as if they are just replacing one safety hazard with another. To be fair, we are not aware of any evidence that exploding e-cigarettes are actually a significant problem. Millions of e-cigarettes have been sold, and these lawsuits represent a statistically insignificant minority, numerically speaking. Our point is simply that the risk should have been anticipated. In the grand scheme of things, we suppose that risk, when compared to the known risks of smoking traditional cigarettes, is worth the trade off.

U.S. Soccer Announces New Safety Initiatives: Just How Effective Are They?

In response to a class-action lawsuit filed last year against FIFA, U.S. Soccer, and the American Youth Soccer Organization, the United States Soccer Federation has announced a number of new safety policies to address head injuries in the game of soccer. As reported by The New York Times, the new regulations, which will be mandatory for U.S. youth national teams and recommended for other soccer associations beyond U.S. Soccer’s control, include the prohibition of players age 10 and younger from heading the ball. In addition, substitution rules will be modified (the specifics have not yet been announced) to help monitor players suspected of sustaining a head injury in the field of play. The announcement ends the suit filed last year in federal court in California by a group of players and parents concerned with the way soccer leagues monitor head injuries. The plaintiffs sought rule changes and not financial damages.

In this regard, we suppose the plaintiffs should proclaim, “Mission accomplished.”

We here at Abnormal Use fully support safety initiatives in sports. While we understand and support the intent of these new initiatives, we wonder how effective they will be. In regard to the unspecified new substitution rules, we again appreciate the intent. Assuming the new rule allows a temporary substitution while a team monitors a suspected head injury, the rule would theoretically encourage teams to pull the injured player off the field without playing a man down. Makes sense. But why should a head injury be treated differently than any other injury in this regard? Who monitors whether a player has a suspected head injury? What is to keep a player who injured a knee, but can’t leave the field without using one of the team’s three substitutions or forcing the team to play a man down, from saying he also hit his head and, thus, alleviating his team from the predicament? Maybe we are over-thinking this (as usual), but it seems a rule like this could cause more difficulty than good.

The bigger hole with substitution rule (again, assuming it is for a temporary substitution), though, is that it doesn’t address a fundamental principle in all sports – players want to be on the field. Players at all levels, in all sports, often hide or minimize their injuries so they can continue playing. Sure, soccer players are aware of the current substitution rules and don’t want to put their teams at a disadvantage, but what they really want is to stay on the field regardless of whether there is or is not a sub. For this reason, we hope that the new rules have some measure of monitoring for suspected injuries or else they might not have much of an effect.

Prohibiting headers by young players is a noble idea. On the surface, what better way to limit head injuries than keeping kids from purposely striking balls with their heads? The prohibition, of course, would also seem to limit the number of mid-air collisions occurring between players leaping to head balls. This much is good. It ignores the fact, however, that soccer remains a contact sport. A contact sport where players do not wear protective head gear. According to the complaint in this matter, nearly 50,000 high school soccer players sustained concussions in 2010. That number is greater than the combined total of players in baseball, basketball, softball, and wrestling. We assume that only a percentage of those numbers were injuries sustained in the course of a header. Rather than simply forbidding the practice for youth (which will become an important part of the game as they progress through the ranks), why not consider head gear which will aid in all aspects of the game?

Ask the NFL how that has worked out.

More Monkey Business: Lawsuit Over Monkey’s Property Rights in Selfie

We recently reported on a New York case where the judge begrudgingly held that monkeys are not people in the eyes of the law. As you might imagine, PETA disagrees, and it has filed a lawsuit on behalf of a monkey named Naruto from Indonesia. The lawsuit, filed in federal court in California, alleges that Naruto has property rights in a selfie that he took of himself in 2011, which subsequently went viral. We’d post a copy of the photo, but we certainly don’t want Naruto suing us.

One of the defendants in the case is the owner of the camera that Naruto used to take the camera selfie. The lawsuit alleges that he has improperly reproduced and distributed the photo for which Naruto owns the copyright. According to the complaint:

While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq. , is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his be half by the Next Friends.
You may be asking what relief Naruto seeks as compensation. Bananas? Apples? Nope, according to PETA, what Naruto wants and needs is money. But, of course, Naruto is not a greedy monkey, so he doesn’t want the money for himself. The complaint requests that the disgorgement of profits from the prior sales and proceeds from future sales be given PETA to do with as it the pleases.
Attorneys, in light of these events, you’d best prepare your clients to enforce their property rights. You know the fox that was chased off that old abandoned farmland in order to clear the way for a McMansion neighborhood? Squatter’s rights. That bird with a nest in the tree that was cut down? Real property damage. The whale whose song was recorded underwater without permission? Copyright infringement. Here we go . . . .

Jessica Alba’s Honest Company Allegedly Not So Honest

Frustrated with the lack of safe and eco-friendly products for her new baby, movie and television star Jessica Alba teamed up with Christian Gavigan to found The Honest Company. With an emphasis on ethical consumerism, The Honest Company produces a number of non-toxic household products including diapers, sunscreen, and personal care items, among others. With such a benevolent name, The Honest Company holds itself to pretty high standards and operates pursuant to the aptly named “Honestly FREE Guarantee.” According to The Honest Company’s website, the following is what such a guarantee means:

We believe the products people use should be safe and non-toxic (surprisingly, many companies don’t!) — not filled with questionable, risky, untested, or harsh ingredients. We also believe it’s better to be safe than sorry when deciding what goes in our products and we’re vigilant about the latest science regarding chemicals and health to ensure we’re being mindfully cautious.

Based on these beliefs, we created our Honestly FREE Guarantee — a core commitment we make to you and your children. And, it’s another way for us to be Honest — educating, empowering and inspiring people to make better choices for their health & families. Providing clear, credible, transparent information. No smoke and mirrors. No confusion.

Unfortunately, a new class action lawsuit filed in California has accused The Honest Company of being not so honest.  According to a report from the Business Insider, the lawsuit, filed by plaintiff Jonathan D. Rubin, alleges that the company’s hand soap, dish soap, diapers, and multi-surface cleaner are “deceptively and misleadingly labeled.” Rubin alleges that even though the company markets its products as being “natural,” in reality the products contain multiple synthetic preservatives. The complaint contains causes of action for breach of contract, unjust enrichment, and violations of several California consumer protection laws. The proposed class is seeking damages in excess of $5,000,000.

In response, Jessica Alba provided Business Insider with the following statement:

Seven years ago, when I was pregnant with my first daughter, I was frustrated by the lack of healthy and safe product options for me and my new family. In fact, prior to launching The Honest Company, I began lobbying Congress to require that ingredients used in everyday products are tested for safety prior to entry into the marketplace.

I started The Honest Company to develop safe and effective products not just for my children, but for families everywhere. I am very proud that we have built this company into an industry leader focused on using natural ingredients and developing products that people love.

We believe that consumers deserve to know what’s in their products — whether it’s diapers for their children, cleaning products for their families or beauty products for themselves. Our formulations are made with integrity and strict standards of safety, and we label each ingredient that goes into every product – not because we have to, but because it’s the right thing to do.

The allegations against us are baseless and without merit. We strongly stand behind our products and the responsibility we have to our consumers. We are steadfast in our commitment to transparency and openness.

I know my children, Honor and Haven, are growing up in a safer home because of our products.

Interestingly, we here at Abnormal Use have made a thorough review of The Honest Company’s website and nowhere did we find any reference to the products being all-natural or made without synthetic preservatives. Rather, The Honest Company claims to be “non-toxic,” a term that it defines much broader than many of its competitors. In fact, as a part of the Honestly Free Guarantee, each product contains a list of the products that are specifically not used in creating the product as well as those that are. It is hard to imagine how such a product could be any more transparent.

We hope this suit turns out well for The Honest Company. We have always liked Jessica Alba and applaud her company’s mission. Honestly.

Costco Shrimp Trade: Not Just Another Blood Diamond

Costco, America’s favorite wholesale warehouse, was sued last week in California over its shrimp merchandise. Interestingly, the suit has nothing to do with the actual quality of the shrimp. Rather, the plaintiffs have some serious beef with how the shrimp were procured. According to a report from Bloomberg, Costco is being accused of selling shrimp farmed through slave labor and human trafficking in Thailand. According to the complaint, Costco purchases Thai shrimp, which are fed a diet of cheap fish caught at sea through unpaid, forced labor, and, thus, such purchases help fuel the inhumane industry. The lawsuit, which seeks class status to represent all California customers of Costco shrimp, alleges that the retail giant misleads consumers into believing that it does not tolerate human trafficking and slavery in its supply chain. The plaintiffs seek to compensate the purchasers of the shrimp products and an injunction preventing it from selling the shrimp and requiring Costco to disclose those products with a tainted supply chain.  The case is Sud v. Costco Wholesale Corp., 15-cv-03783, (N.D.Ca. 2015).

Costco has responded that these allegations have been well-publicized for over a year. A previous investigation by Britain’s Guardian newspaper found that Costco supplier, Charoen Pokphand (CP) Foods, was buying fishmeal to feed its shrimp from some suppliers that owned, operated, or bought from fishing boats manned with slaves. CP Foods has since tightened up its regulations. Likewise, Costco has been working with the Thai government to shore up the supply chain and has offered dissatisfied customers full refunds.

We here at Abnormal Use certainly do not condone slavery or human trafficking.  It sounds like Costco doesn’t either (at least now).  Notwithstanding this lawsuit, it at least appears that steps are now being taken to right the ship.

What Costco knew about the tainted supply chain and when they knew it, we do not know. Certainly, those two questions would go along away to determining the merit of this suit. Nonetheless, we question what this proposed class of Costco customers really seeks to gain out of all of this? Refunds? Costco has already agreed to that.  Cleaning up the tainted supply chain?  Costco is already working on that as well. At this point, the only people who have really been damaged are those individuals forced into slavery in the first place.  Unfortunately, they are the only ones who won’t profit from this lawsuit.

Juror’s Outside Research Leads to New Trial in Tylenol Death Case

Reportedly, California federal judge John A. Kronstadt has signed an order setting aside a November Jury verdict in favor of Defendant McNeil-PPC Inc. in light of some funny business by a member of the jury.  The substance of the Plaintiff’s claim was as follows:

Kindra Robertson filed the suit against McNeil in 2011 after her 11-year-old son Tyler died of sepsis caused by pneumonia several days after ingesting Children’s Tylenol from a batch allegedly included in a voluntary recall in September 2009, according to the complaint. Robertson had the bottle tested for contamination, which was found to be positive for bacteria.


The juror in question “initially said in a declaration presented in support of the motion for a new trial that she told other jurors that the Tylenol given to Robertson’s son hadn’t been recalled.” Apparently, this research “helped change [the juror’s] vote to the defense.” The Judge was apparently concerned because the verdict needed to be unanimous, and thus, the juror at issue being influenced by the verdict was important on its own.  There was also concern that the juror communicating this information to other jurors may have influenced the other jurors to whom the juror communicated the information.

It is fairly common knowledge at this point that juror’s perform outside research despite being instructed by the Court not to do so.  Though it is all too familiar, it remains improper, and when it influences the outcome of the trial, it may give everyone the opportunity to try the case again in front of a new group of jurors, as it did in this case.

(Hat Tip: Law360).

Slingbox Sued For Slinging Ads To Customers

If there’s anything this particular author hates, it’s advertisements. They are everywhere these days . . . from Taxi Cabs to Subway Turnstiles, you just can’t escape them. It’s gotten so crazy that we’ve even seen a local DUI defense law firm place ads on an “over 21″ wrist band needed to buy beer at a minor league hockey game. As annoying as the ads may be, it’s just part of modern life. Or is it? Some customers of Slingbox who have been bombarded with new adds aren’t taking it lying down and have filed a class action lawsuit against the Sling Media. If you don’t recall, Sling Media is the maker of the Slingbox, which takes customers’ home TV signal that comes from a cable box and “slings” it to a phone, tablet, or computer anywhere in the world. In a nutshell, it’s like being able to take your home TV and remote with you anywhere in the world. Slingbox is a slick device, but it comes with a hefty price tag north of $200.

According to the lawsuit, in March of this year, Slingbox devices started embedding advertising in media streamed to their mobile devices. So, now, Slingbox customers are forced to watch the embedded ads from Slingbox in addition to whatever ads are being shown through their cable provider. The plaintiffs allege that they never consented to this additional advertising. They claim that Sling Media failed to disclose that the use of the product would be contingent upon and subject to this advertising. According to the complaint, “Slingbox has perpetuated a massive ‘bait and switch’ upon thousands of unsuspecting consumers, each of whom spent as much as $300 or more for these products, but who now need to watch the defendant’s ads to use their devices as promised.”

Of course, the plaintiffs are seeking class action certification in California district court. They have alleged that the ads are misleading and violate business California consumer protection laws and constitute unfair competition or deceptive business practices. As you might expect, the Plaintiffs are not just seeking an injunction to stop the ads. They also seek restitution and disgorgement of all profits garnered from the allegedly unfair or misleading business practices. We’ll keep an eye on this one.

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.

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.