The Coming Ebola Litigation?

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.

Outrage! Walmart Asserts Affirmative Defenses in Tracy Morgan Case

Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured.  The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others.  Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact.  According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone.  He has pleaded not guilty  to death by auto and assault by auto charges.

Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar.  According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera).  One of those affirmative defenses, however, prompted much criticism.  Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.”  The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.

Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”

We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation.  Is Walmart attempting to shift all or some of the blame to the plaintiffs?  Certainly.  That is the very nature of an affirmative defense.  Should Walmart be publicly criticized for it?  Absolutely not.  Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt.  N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries.  As such, Walmart is raising a defense which it is entitled to raise by law.

We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case.  However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings.  If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury.  This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law.  Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading.   As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived.  If discovery reveals that the defense is groundless, then Walmart can always withdraw it.

We wonder if the media would report on that development.

Mike “The Situation” Sorrentino’s Tax Fraud Arraignment Delayed

For those readers who were eagerly anticipating the arraignment of Mike “The Situation” Sorrentino, originally scheduled for this week, you must unfortunately wait even longer.  Reportedly, the arraignment has been delayed so that The Situation can film another reality TV show. For those unfamiliar with the case, The Situation and his brother allegedly falsified tax returns in order to avoid nearly $9 million in taxes. A Justice Department press release explains that The Situation and his brother “did not properly pay taxes on $8.9 million in income Michael Sorrentino received from promotional activities . . . .”  The press release goes on to explain that:

Michael Sorrentino is a reality television personality who first gained fame on “The Jersey Shore,” which appeared on the MTV network. Marc Sorrentino is Michael’s brother and manager. The pair conspired to fail to pay all federal income tax owed on approximately $8.9 million earned by Michael Sorrentino between 2010 and 2012. This income was largely received by two companies controlled by the brothers: MPS Entertainment, LLC and Situation Nation, Inc.

As part of the conspiracy, the brothers submitted or caused to be submitted to the IRS false documents which understated the gross receipts received by the brothers and the two companies. The brothers also submitted false personal tax returns which failed to report all of the income they received, and Michael failed to file a personal tax return in 2011, despite earning $1,995,757 that year.

As part of the conspiracy, the brothers also fraudulently claimed millions of dollars in personal expenses as business expenses, including payments for high-end vehicles and clothing, personal grooming expenses, and distributions – or direct payments – from the businesses to personal bank accounts.

The conspiracy count carries a maximum potential penalty of five years in prison and a $250,000 fine; the filing false tax return counts each carry a maximum potential penalty of three years in prison and a $250,000 fine. The count charging Michael Sorrentino with failing to file a tax return carries a maximum potential penalty of one year in prison and a $100,000 fine.

U.S. Attorney Fishman credited special agents of IRS-Criminal Investigation, under the direction of Acting Special Agent in Charge Larsen, with the investigation.

The prosecutors assigned to the case are Assistant U.S. Attorneys Evan S. Weitz and Jonathan W. Romankow of the U.S. Attorney’s Office Criminal Division in Newark, as well as Trial Attorney Tino Lisella of the Tax Division of the United States Department of Justice. Weitz is no stranger to high profile financial cases, having handled the case against Karen Febles, who allegedly stole millions from an investment banker. Romankow was involved in the prosecution of reality stars Teresa and Joe Guidice and Lisella has been involved with the case of the New Jersey doctor who allegedly participated in an oxycodon distribution conspiracy.  Point is, the prosecution team is no stranger to high profile cases.   The Situation’s defense attorney, Richard Sapinski, may have his work cut out for him.

For more information, the indictment is located here.

Frozen: Not Just Another Disney Princess Story?

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A princess born with cryokinetic powers, locked away from the outside world for years, unleashes a deep freeze on the community when she is unveiled as queen.  If you thought this was the CliffsNotes plot summary of Disney’s Frozen, you would be partially mistaken.  Apparently, it is also the tale of a New Jersey woman.  According to a report from the New York Daily News, Isabella Tanikumi a/k/a Amy Gonzalez, has filed suit against Disney in a New Jersey federal court alleging that the entertainment giant lifted the story straight from her life. Specifically, Tanikumi alleges that the makers of Frozen stole the story, characters, plots and subplots from her two memoirs, Living My Truth and Yearnings of the Heart, which chronicle her upbringing in the Andean mountains of Peru.  Disney, however, has previously claimed that Frozen is loosely based on Hans Christian Andersen’s 1844 fairy tale “The Snow Queen.” Tanikumi obviously isn’t buying it, as she is seeking $250 million in damages.

We here at Abnormal Use have admittedly never read either of Tanikumi’s memoirs.  Nonetheless, our guess is that this lawsuit falls more into the realm of absurd than it does Queen v. Vanilla Ice.  Anyone who has viewed the film would certainly question how the story of an ice princess and a talking snowman could possibly have ripped off a Peruvian memoir.  As reported by NJ.com, the suit alleges the following as parallels between the films:

— Both the memoirs and “Frozen” feature two sisters, one of whom causes the other to be injured and then hides herself away because she feels shame.

— Both live in a village or town at the foot of snow-covered mountains, the suit alleges.

— The sisters are brought closer by a terrible accident — an earthquake in the memoirs and a storm in “Frozen.”

— The above-mentioned accidents result in the deaths of loved ones.

— In the memoirs, one of the sisters has suitors named Hans and Cristoff and in “Frozen” Anna develops romantic attachments to men named Hans and Kristoff.

These allegations appear to be more coincidental rather than deliberate attempt at a rip-off.  Even the most specific example, the names of the male characters, loses traction when you consider the adaptation from Hans Christian Anderson and the film’s Scandinavian setting.  While Disney is obviously a huge outfit with tons of resources, we highly doubt that its writers were scouring through self-published memoirs for their next big idea. Looking into our crystal ball, our guess is that this lawsuit will melt quicker than Olaf on a summer’s beach. Tanikumi may finally have someone purchase her memoirs off of Amazon due to the publicity, but she won’t see a dime from Disney.  And, then, when all is said and done, Tanikumi releases a Peruvian version of “Let It Go” only to be sued by Disney for copyright infringement.  We can only dream.

Casino Loses Millions, Sues Card Manufacturer

Recently, we wrote about a man suing a Las Vegas casino after he lost $500,000 gambling while intoxicated.  As ridiculous as that suit may be, the Borgata Hotel Casino and Spa in Atlantic City is now vying for silliest casino lawsuit of the year.  In a new suit filed in federal court, the Borgatta is suing Phillip Ivey, Jr., a big time professional gambler, and Gemaco, Inc., a card manufacturer, claiming Ivey won $9.6 million in a baccarat card-cheating scheme.

We imagine the nearly $10 million in winnings was  against the house edge.

The real kicker is not that Ivey won such a large amount of money but, rather, how he was able to do so.  According to the complaint, Ivey exploited a defect in the cards that allowed him to improperly sort and arrange them using a technique called “edge sorting” – illegal under the New Jersey casino gambling regulations.  The cards, manufactured by Gemaco, were allegedly defective in that the pattern on their backs was not uniform.  Where the cards were supposed to have a row of small white circles designed to look like the tops of diamonds, some of the cards apparently only had half or quarter diamonds.  Allegedly, Ivey was able to sort desirable cards from undesirable ones after observing the defect.

We have to wonder when the Borgatta discovered this alleged defect. In an industry so heavily controlled and regulated, we find it hard to believe that any deck of cards would ever see the light of a casino floor without first being inspected and approved by the casino.  With so much money on the line, casinos have never been shy about self-policing.  If this “defect” was an obvious one, we imagine these cards would have been sent right back to Gemaco.  If there actually was a defect, then it was most likely so slight that it was undetected by even the most careful inspectors.  The fact that Ivey was able to notice the flaw is impressive. Sure, it is easy for the Borgatta to point the finger at Gemaco.  After all, its alleged flaw may have cost the casino nearly $10 million.  But, why did Borgatta use a card with a decorative card backing in the first place?  It seems like such cards would be more susceptible to non-uniformity and enable these types of situations.

We suppose a simple solid design would have been too tacky for the Borgatta.  A casino’s extravagance is what draws the gamblers in to throw away their money.  Unfortunately, this time it backfired.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

NFL Forces Man To Buy Super Bowl Tickets, Litigation Ensues

On January 6, 2014, New Jersey citizen Josh Finkelman sued the NFL in federal court after he paid $4,000.00 for two tickets to the Super Bowl.  I can only speculate how the Super Bowl Ticket Litigation began.  Here’s my guess:

Mrs. Finkelman:  You spent how much on Super Bowl tickets?  We could go on a nice family vacation to Miami or Myrtle Beach for $4,000.00, and you spent it all on some stupid football game that you want to go to with your idiot friends!

Mr. Finkelman: [initially debating whether to pull the fire alarm or jump out of a window, but finally comes up with a brilliant excuse] Honey, it wasn’t me.  The NFL made me do it. Then they made the tickets more expensive than they should be.   It’s criminal really.  I think I’m going to file a lawsuit!

Mrs. Finkelman:  [rolling eyes and trying to remember the number for the divorce attorney from TV] Okay, you do that.  You file a lawsuit.

Of course, the above is merely speculation.  However, my hypothetical explanation is less far-fetched than Mr. Finkelman’s theory of liability against the NFL. Mr. Finkelman believes that he was forced to pay $4,000.00 for two Super Bowl tickets because the NFL offered 4 percent less tickets to the general public than it should have.  That is, New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.  Interesting theory. Maybe there’s something to this, maybe there isn’t, but here are my initial thoughts:

Super Bowl tickets are expensive.  Everyone expects them to be expensive, and everyone knows that most people cannot afford to go to the Super Bowl.  It is the most prestigious sporting event in the United States.  It should not surprise anyone when tickets to the Super Bowl go for $2,000.00 per ticket.  Frankly, I would not be surprised if Super Bowl tickets were $40,000.00 per ticket. Also, how did the NFL force Mr. Finkelman to buy Super Bowl tickets from scalpers?  This is America.  If you don’t like the price, don’t buy the tickets.  Watch the game on your couch like everyone else.  The commercials are the best part of the game anyway.  I would argue that the NFL tried to discourage people from buying tickets by having the game in East Rutherford, New Jersey in February. Perhaps Mr. Finkelman is a fan of an AFC team and got a bad case of buyer’s regret when he realized that the Panthers are a lock to win the Super Bowl this year.

(Hat Tip: Reason).

Catch-22 of Marketing Sports Equipment: New Riddell Lawsuit

In an ideal world, products liability and other consumer protection lawsuits should make products safer in the long run.  However, there are often instances where they actually encourage companies not to innovate and improve safety.  For instance, the sports equipment companies who want to design safer products (e.g., helmets) must sink a lot of money into research and design of safer products.  Yet, at the end of the day, a new and improved product won’t look much different from the old ones competitors will sell at a cheaper price.

The solution is, of course, advertising the benefits of the new and improved product.   Or is it?

Advertising safer products presents a Catch-22 for companies.  If they don’t advertise, consumers are less likely to buy the new and improved product.  This may reduce the incentive to invest in developing safer products.  Yet, if they do advertise their product as “safer,” they’ll almost certainly be sued over that advertising down the line if someone is injured while using their new product.

Such is life for Riddell, Inc., one of the world’s leading manufacturers of football helmets.  For years, it has faced a barrage of concussion lawsuits.  In the last decade, it has attempted to improve the safety of its helmets by designing new and ostensibly safer models, one of which was called the “Revolution” helmet.  Unsurprisingly, it is now being sued over its marketing of that helmet.

Earlier in December, the case of Thiel vs. Riddell, Inc., et. al., 1:13-cv-07585, was filed in federal court in New Jersey.  According to the lawsuit:

[Riddell] in a engaged a scheme to mislead New Jersey consumers about the benefits of their premium-priced helmet by falsely advertising to New Jersey consumers that the Revolution helmet is manufactured with “concussion reduction technology” which reduces the incidence of concussion, and does so by up to 31%

The suit contends that marketing of the Revolution helmet was intended to and did create the perception among purchasers that the helmet better reduced the chance of concussion than lower priced helmets.  Plaintiff further contends that Riddell relied upon a study by the University of Pittsburgh Medical Center to make the claim of a 31% reduction in concussions but that such study was fatally flawed and Riddell was aware of this fact. We don’t have enough facts to make any sort of assessment as to the merits of the case, but it does reenforce the dangers in marketing innovative safety equipment.  Notably, the marketing video for Riddell’s new top of the line helmet, the “360″, focuses more on the features of the helmet without being very specific about its benefits.  Of course, we can still see a Plaintiff claiming that it creates the perception that the helmet reduces chances of concussions.  Then again, isn’t that the point?

Golfer Takes a Mulligan. Mayhem and Litigation Ensue.

There’s always one guy in the foursome who hits the ball six(teen) times and writes down a four.  He is the same guy whose ball miraculously lands on the edge of the fairway even though everyone in the group saw it drop directly into the middle of the woods without touching a branch.  He takes between 6 and 10 practice swings.  He often takes a “provisional,” which is really a mulligan, but when one calls it a provisional, it becomes an interesting type of shot that’s effect changes significantly from the time it is hit until the time that the player’s score is entered onto the card.  When provisional guy declares he is taking a provisional, he does so in a fashion similar to this: “I’m going to take a provisional. I’ll only take it if I can’t find my first one.”  The next step in the provisional process is usually:  1) the provisional guy will declare that he “lost his provisional but luckily he found his first one”; or 2) the provisional guy will not say anything and pretend that he never hit two balls in the first place.  The final step in the process is always the same – the provisional is not counted and it is as if the first tee shot never happened.

Point is, everyone who plays golf has this friend (note: if you don’t have this friend, you probably are this friend), and the good news is that you no longer must calendar the date that the statute of limitations will run on every one of his mulligans, at least in New Jersey.  Judge Vena’s recent opinion in Corino v. Kyle Duffy et al provides this provisional safety. In Corino, Thomas Schweizer and Bryan Chovanec decided to play a round of golf with Kyle Duffy on August 23, 2011 at Skyview Golf Club in Sparta, New Jersey.  On the 15th tee,  Duffy had one get away from him.  It is unclear where Duffy’s shot went, but he apparently did not like the outcome.  One thing is clear – Duffy has an awful slice, but a clear command of the aforementioned provisional maneuver.

Mr. Corino had the misfortune of being located on the 16th fairway when Duffy’s group was on the 15th.  The layout of the course apparently provided the basis for this misfortune, as the 16th hole ran parallel to the 15th hole.  Corino saw that all three members of Duffy’s group hit their tee shot, so Corino addressed his ball.  Unbeknownst to Corino, while he was taking practice swings, Duffy was laying a foundation for the provisional with his golfing buddies (Disclaimer – this part is not in the record.  All we know from the record is that Duffy took a provisional.  The rest is speculation on the part of the author of this post).  One does not take his time with a provisional. The quicker one steps up to hit a provisional, the less it seems like an extra stroke.  A provisional, like a card trick, should be executed with sleight of hand.  While Corino was hitting his shot on the 16th, Duffy quickly hit a provisional, which he (shockingly) sliced into the 16th fairway.  Apparently, no one yelled “fore”, so the errant golf ball was a bad surprise for Corino.  Duffy’s ball shattered Corino’s sunglasses and severely lacerated Corino’s eye.

Corino’s injuries were severe and not funny, but the fact that Corino joined Duffy’s golfing buddies in the ensuing lawsuit provides some comic relief to an otherwise dire situation.  Corino sued Schweizer and Chovenac for allowing Duffy to take a provisional and for not yelling fore.  Schweizer and Chovenac filed summary judgment motions.  After reviewing the official rules of golf and New Jersey golf case law, the judge determined that it was Duffy’s duty to yell “fore” (or to provide some other warning), and that the other two golf buddies were in the clear.  Summary judgment was granted and the claims against Duffy’s golfing buddies were dismissed. Great result for Schweizer and Chovenac, but does this holding have broader implications?  Do the rules of golf now preempt principles of common law negligence?  Does the violation of a rule of golf provide a basis for a negligence per se claim?  Is every hacker on the golf course now imputed with knowledge of the rules of golf?  Can someone be jailed for slowing down the group behind him or her? (the last one is wishful thinking).

(Hat tip: TortsProf Blog).

Sending Texts To Those You Know Are Driving Could Prompt Liability

In an interesting ruling earlier this week, a New Jersey appellate court held that you don’t have to be driving to get in trouble for sending a text message.   You can potentially be held legally liable for sending a text message to someone who is behind the wheel and causes an accident.  This ruling seems to open a whole new battlefield in the war on texting and driving. The Appeals Court agreed with the argument made by two Plaintiffs that were seriously injured in a crash with a teenager whose truck swerved across the center line and hit them riding on their motorcycle. The Plaintiffs settled with the driver, but they also sued his girlfriend for their injuries.  She allegedly texted him just moments before the crash. The court didn’t find the girlfriend liable because she didn’t appear to know her boyfriend was driving at the time.  Nevertheless, the judges accepted the general argument that a text sender may bear some legal liability if they know the relieving party is driving.  The opinion stated:

We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.

This is certainly an interesting new duty placed on non-driving texters.  Even if there is such a duty, one must wonder whether the sending of the text would be considered the proximate cause of any accident.  After all, wouldn’t the driver’s act of accessing and reading the text be the proximate cause of the accident, not necessarily the person sending the text? And how would the non-driving texter’s purported knowledge of the recipient’s driving be litigated under the circumstances? This opinion should make for some interesting future litigation.

The opinion is Kubert v. Best, — A.3d —-, No. A-1128-12T4, (N.J. Ct. App. Aug. 27, 2013).