Steak Dinner In Florida Turns Into Acid Trip

When you buy steaks at Wal-Mart, you expect Grade A quality beef.  A Florida family, however, claims the steaks they purchased weren’t exactly worthy of Gordon Ramsey’s kitchen.  According to a report from The Smoking Gun, Ronnie Morales and Jessica Rosado, Morales’ 9-month pregnant girlfriend, along with Rosado’s two children, were hospitalized after allegedly consuming LSD-laced bottom round steak purchased from a Florida Wal-Mart.  After eating dinner, Morales allegedly became violently ill.  Rosado drove him to the hospital where she, too, became ill, forcing her to be admitted to the Women’s Hospital, where physicians induced labor.  Shortly thereafter, Rosado’s children allegedly began hallucinating and fell ill.  All have now been released from the hospital.  The report is silent as to whether the family will demand a steak dinner anytime soon.

An incident of this type is obviously traumatic, especially when a pregnant woman is involved.   At this point, it is too early to tell who is to blame.  Tampa Police Chief Jane Castor has said that there was “no indication” of any involvement by Morales or Rosado.  So, if not them, then who?  A neighbor?  A friend?  Wal-Mart?  The packing house?  Could it just have been an LSD-addicted cow?  These questions are yet to be determined.

Certainly, this Florida Wal-Mart will be forced to attempt to clear its name.  Despite the police’s assertion the there was “no indication” that the victims were involved, Wal-Mart would be wise to do more investigation.  We are by no means experts in LSD, but we do find it suspicious that the effects of LSD can be so severe after the drug has been exposed to heat.  Moreover, we also find it interesting that those effects were violent illness for the adults rather than hallucinations.  Something sounds suspicious. There are obviously more questions than answers at this stage.  We don’t know who, what, where, when, or how this family ingested LSD.  But, certainly it couldn’t have been from a high quality Wal-Mart steak.

Florida Court Rebuffs Request For Social Media Discovery

We knew it was coming, and we’ve seen evidence of it already. Courts are beginning to limit the nature of social media discovery, chiefly in light of the fact that we live so much of our lives online that not every post or status update can be discoverable in a lawsuit. Yesterday, in Root v. Balfour Beatty Const. LLC— So.3d —-, (Fla. Ct. App. Feb. 05, 2014), the Florida Court of Appeals overturned a magistrate’s order in a negligence case that had required the Plaintiff to produce a host of materials from her Facebook account. The Plaintiff was suing on behalf of her young son who was injured in an automobile accident near a construction site (the safety of which was at issue in the proceeding). It does not appear that the Plaintiff was present at the scene of the accident, and at that time, Plaintiff’s son was being supervised by his 17 year old aunt (which led to a negligent entrustment affirmative defense).

Here’s what the defendant’s asked for:

(o.) Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff's]‘s
i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

….

v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

Not surprisingly, the Plaintiff object to the discovery requests on the grounds that they were overbroad. The Court of Appeals bought this argument, noting:

[Plaintiff's] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child's] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff's] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff's] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

At the hearing before the magistrate, the party seeking discovery didn’t help itself by noting that “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Well, we as defense lawyers probably need to articulate the basis for our social media discovery requests a bit more artfully (although the magistrate judge, who apparently remarked at the hearing that “95 percent, or 99 percent of this may not be relevant,” did require production of the materials requested). The lesson: tailor social media discovery requests to require production of materials related as closely as can be to the claims and defenses in the case.

Zimmerman Case Puts More Florida Laws Under Scrutiny

In the course of following the George Zimmerman/Trayvon Martin case, the entire country learned about Florida’s so-called “Stand Your Ground” law.  In case you’ve been under a rock for the better part of a year and a half, Zimmerman was a neighborhood watch volunteer who encountered 17-year-old Trayvon Martin one night in his gated community.  After calling the police, Zimmerman and Martin got into an altercation that resulted in Zimmerman fatally shooting Martin. While the defense team for Zimmerman did not actually use Florida’s Stand Your Ground law as a defense at trial, the case itself brought that law and others like it from other jurisdictions under intense scrutiny.  Protests such as this sit-in reported by The New York Times sprung up around the nation against these types of laws, passed in the name of self defense.

Zimmerman’s recent acquittal has brought another Florida law into the limelight.  As reported by NBC News, Zimmerman’s attorneys are preparing a motion that would ask the State of Florida – i.e. the Florida taxpayers – to pick up part of the tab for his defense, to the tune of almost $300,000.  The motion would be based on a Florida law that “says a defendant who’s acquitted isn’t liable for costs associated with his or her case,” according to NBC.

Like good little lawyers, we looked up the statute.  It states as follows:

(1) A defendant in a criminal prosecution who is acquitted or discharged is not liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If the defendant has paid any taxable costs, or fees required under s. 27.52(1)(b), in the case, the clerk or judge shall give him or her a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to the defendant.
(2) To receive a refund under this section, a defendant must submit a request for the refund to the Justice Administrative Commission on a form and in a manner prescribed by the commission. The defendant must attach to the form an order from the court demonstrating the defendant’s right to the refund and the amount of the refund.
Fla. Stat. Ann. § 939.06.  A few decisions out of Florida have clarified the statute.  First, the public policy behind the statute is fairly obvious, but it’s worth repeating.  The purpose of the law is, as stated by the Florida District Court of Appeals, is to “protect a defendant from costs when he is innocent or when the state fails to pursue a vigorous prosecution.”  State v. Crawford, 378 So. 2d 822, 823 (Fla. Dist. Ct. App. 1979).
It should also be noted that not everything that Zimmerman–or his lawyers–spent on behalf of his defense effort is eligible for reimbursement; only “taxable costs” are provided for in the statute.  The Supreme Court of Florida has provided some guidance here:
Given its plain meaning, the relevant portion of this statute simply says: No acquitted criminal defendant shall be liable for any court costs or court fees, any costs or fees of a ministerial government office, or any charges for subsistence, and that if such a defendant has paid any of these taxable costs he or she shall be reimbursed by the county.
Bd. of Cnty. Comm’rs, Pinellas Cnty. v. Sawyer, 620 So. 2d 757, 758 (Fla. 1993).  Examples of costs that would not be reimbursable under Florida law include investigative costs, private attorneys’ fees, deposition transcription fees, video deposition fees, process service fees,  expert witness fees, and fees for transcription of excerpts of trial.  Id.; Hillsborough County v. Martinez, 483 So.2d 540 (Fla. Ct. App. 1986); Justice Admin. Comm’n v. Neighbors, 927 So. 2d 218, 219 (Fla. Ct. App. 2006).

It will be interesting to see if this law receives the same kind of attention and criticism as Stand Your Ground.  The Zimmerman case continues to make news and provide a microscope with which to view the rule of law and other issues of socio-economics and race in America.  Fascinating stuff.

McDonald’s Cases: More Than Just Hot Coffee

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.

Five Hours of Energy, No Crash?

Earlier this year, 5-Hour Energy manufacturer Innovation Ventures LLC d/b/a Living Essentials was hit with a series of class action lawsuits alleging that its claims of increased energy without the subsequent “crash” were false. Innovation subsequently moved to dismiss those suits. Last week, the manufacturer found out that it must continue litigating at least one of those suits after a Florida federal judge denied its motion.

At issue in these cases is 5-Hour Energy’s product statement, “Hours of energy now – No crash later.” As self-proclaimed coffee connoisseurs, we are a little too old fashioned to know the effectiveness of an energy drink’s claim. Apparently, enough consumers to organize into three putative classes think the product statement is a bit of a stretch.

In one of the suits, Guarino v. Innovation Ventures LLC, d/b/a Living Essentials, No. 13-cv-00101-GPM-PMF (S.D. Illinois 2013), the plaintiffs allege that the product statement “is not true, as admitted on the Defendant’s website and hidden behind the bottles in the display, which reads: ‘No crash means no sugar crash.’” So Innovation is falsely advertising a product by placing true statements on its website and directly on the bottle? Now we see why Innovation filed those motions to dismiss in the first place.

While its motion to dismiss may have been denied, Innovation may still ultimately prevail in this suit. Pleading sufficient allegations to survive a motion to dismiss does not necessarily make a good case. Unfortunately for Innovation, it now must embroil itself in hours of litigation defending the case. For their sake, let’s hope there is no awful crash afterwards.

NBA Team Rests Players, Gets Sued

Late last year, NBA Commissioner David Stern fined the San Antonio Spurs $250,000 for benching its star players for a November 29th game in Miami. As you might recall, Spurs coach Greg Popovich elected to rest star players Tim Duncan, Manu Ginobli, Tony Parker, and Danny Green against the Heat for the last game of 6-game road trip. We here at Abnormal Use refrained from voicing our opinions on the fine because it was not necessarily a legal issue at the time.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.

Florida Case Provides Insight on Learned Intermediary Doctrine

As we have discussed in prior posts, warnings involving medical devices and/or prescription drugs are issued not to the end user patient, but to the doctor prescribing or using the device.  This does not, however, release the drug or device manufacturer from the duty to adequately warn of the dangers of using the device or product.  In fact, it simply complicates the issue of what an adequate warning looks like. Take the recent case of Horrillo v. Cook Inc., 10-15327, 2012 WL 6553611 (11th Cir. Nov. 7, 2012) [PDF].  This case involved a stent manufactured by the defendant and approved by the FDA for use in bile ducts.  Dr. Michael Rush, however, used it during his angioplasty surgery on Margaret Horillo, not in a bile duct, but in her renal artery.

Within 24 hours of the procedure, Ms. Horillo suffered a serious stroke.

The warnings included by the manufacturer read as follows:

First, it stated that the device was “intended for use in palliation of malignant neoplasms in the biliary tree,” which is to say, treatment for cancer in the bile ducts. Second, under a heading entitled, “WARNINGS,” the instructions for use cautioned that “[t]he safety and effectiveness of this device for use in the vascular system have not been established.”

Deposition testimony in the case, however, revealed that stents such as this one were regularly used “off label” in the vascular system.  In fact, Dr. Rush had used this particular stent in the past in renal arteries.  The off-label use was so widespread, in fact, that the FDA called Cook and several other such manufacturers together about the issue before this surgery was performed.  As a result of that meeting, Cook sent a letter to the hospital where Dr. Rush did the surgery warning of the risk of stroke.

In his deposition, Dr. Rush testified that he was aware of some risk of using the biliary stent in the vascular system.  The degree to which he knew of the risks, however, became the primary issue in litigation.  At the trial level, the magistrate concluded that Dr. Rush was fully aware of the risks, applied the learned intermediary doctrine, and granted Cook’s motion for summary judgment.
The appellate court was not so convinced.  As the court stated, the issue was whether Dr. Cook’s knowledge was equal to that of Rush.  The evidence in the case suggested that it was not, and reversed summary judgment, and remanded the case.  A good reminder that the learned intermediary doctrine comes with its own set of challenges as an affirmative defense.

Engle Case in Florida Supplies More New Law in Florida

We’ve been blogging pretty regularly about the cases coming out of the case of Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).  The cases have presented interesting class action issues, as well as novel statutes of limitations issues.  On December 14, 2012, the second district court of appeal of Florida rendered its decision in Smith v. R.J. Reynolds Tobacco Co., No. 2D11-2562, 2012 WL 6216756 (Fla. Dist. Ct. App. Dec. 14, 2012), another case which provided Florida the opportunity to navigate “the interplay of the Florida Wrongful Death Act and the Florida Rules of Civil Procedure.” Some background first.  Della Mae Butler was a plaintiff in a personal injury action against several tobacco companies; as the court notes in its decision, she was pursuing a so-called “Engle claim.”  After she died, the personal representative moved to amend the complaint to substitute himself as the plaintiff and to add a wrongful death claim.  The circuit court denied the motion and dismissed  the complaint. Here was the issue:

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

“Fundamentally inconsistent” Jury Award Prompts Florida Appeals Court To Reverse

Juries are fickle.  There is just no getting around it.  Ask any seasoned trial attorney, and he or she can probably tell you about the jury that “got it all wrong” – not simply, perhaps, because they ruled against the lawyer’s client, but because their award or decision defied all logic. That was the issue that confronted Florida’s third district court of appeals in the case Tricam Ind  ustries, Inc., et al v. Coba, 100 So.3d 105 (Fla. Dist. Ct. App. 2012), reh’g denied (Nov. 19, 2012) [PDF].  The case centered around a ladder manufactured by Tricam Industries and sold by Home Depot.  The decedent, a civil engineer, died 10 days after falling from the ladder from injuries sustained in that fall.  The plaintiff alleged strict liability and negligence against both defendants in several particulars, including manufacturing and design defects.  At trial, the evidence focused only on the design of the ladder, however.   Specifically, the plaintiff’s expert opined that the design of the ladder was such that it could give the impression of being in the locked position when, in fact, it was not.    The defendant’s expert, predictably, opined that the ladder could not “false lock.”

Prior to closing arguments, the plaintiffs withdrew the manufacturing defect claims.  In addition, the court limited the jury instructions to design defects in both the  strict liability and negligence theories.  The jury, however, returned a verdict finding that there were no design defects, but that the negligence of the defendants was a legal cause of the decedent’s death, and awarded more than $1.5 million to the plaintiff. After trial, the defendants argued that the verdict should be set aside because the finding of no design defects was fundamentally inconsistent with its finding of negligence.  The plaintiff also moved for a new trial based on some issues with one of the jurors not pertinent to a products liability discussion.  The trial court denied both motions.

The appellate court considering the defendants’ motion reversed the trial court’s decision.  First, however, it noted that a reversal on such grounds is no small task, given the fact that the defendants had failed to object to the verdict at the time it was rendered:

The plaintiff concedes that the verdict in this case was inconsistent, but argues that the defendants waived their objection to the inconsistency by failing to object before the jury was discharged. Normally, we would agree. The Fourth and Fifth District Courts of Appeal, however, have carved out an exception to this general rule where the inconsistency “is of a fundamental nature.” Because we agree with the well-reasoned opinions of our sister courts to the north, and because there is no case in this district which has held to the contrary, we adopt the “fundamental nature” exception as applied in this context.
100 So. 3d at 108-09 (internal citations omitted).  Citing prior opinions from those districts, the Third District, which heard this case, adopted that test and reversed the verdict.

Another Engle Statute Of Limitations Issue Arises In Florida Smoking Case

In November of 2012, we blogged about the Castleman case, the most recent Engle decision in Florida, where the court found itself in the strange position of hearing the plaintiff argue for an earlier manifestation date in his smoking/lung injury case.  Usually, the plaintiff is arguing for a later date to prove that he hasn’t blown the statute of limitations.  But, as we discussed in that post, the earlier manifestation date would have allowed the plaintiff to gain class member status, affording him the benefits of certain preclusive findings in his own case.

Well, Engle issues also arose in the October 2012 decision of Philip Morris USA, Inc. v. Barbanell, 100 So. 3d 152 (Fla. Dist. Ct. App. 2012) [PDF].  This case involved, predictably, the death of the plaintiff’s decedent as a result of smoking Philip Morris-manufactured cigarettes.

The other issue before the court in Barnabell, as in Castleman, was the statute of limitations.  Philip Morris argued that the court erred by not granting the company’s motion for summary judgment on the issue.  This appeals court affirmed the trial court’s decision and declined to grant Philip Morris judgment as a matter of law.

Specifically, the issue was whether the statute of limitations began to run when the decedent started to experience lung-related conditions including shortness of breath, “hard breathing,” and other breathing-related difficulties, or whether the clock didn’t start until the decedent was specifically informed by her doctor that she suffered from smoking-related emphysema and, later, lung cancer.

The court held that the latter diagnoses should be the measure by which the statute of limitations was calculated:

In this case, the trial court directed a verdict on PM’s affirmative defense that the statute of limitations barred Barbanell’s claim of wrongful death from lung cancer, and the jury made the finding that Shirley Barbanell did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that Mrs. Barbanell was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer. We therefore affirm the trial court in all respects as to the direct appeal and cross-appeal. 

100 So. 3d 152 at 160.  The decision drew a strong dissent on whether or not the issue should have been decided by the court at all or allowed to go to the jury.  Nevertheless, the statute of limitations continues to be a heavily litigated issue in these smoking cases.