Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

Things weren’t looking too good for the bat manufacturer, to say the least.

In a twist of fate, however, an Oklahoma court tossed the $951,000 jury verdict just days after the massive New Jersey settlement.

The jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries.  In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn.  Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball.

On Hillerich’s post-trial motions, the court held that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.’” Certainly an aluminum bat can create increased bat speed, but does this necessarily mean it is more dangerous than its wooden counterpart?  As Forbes writer Dan Fisher, noted:

[T]he experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball.

Apparently, the plaintiff also never established that the bat - and not some other extraneous factor (i.e. a good hitter) - was to blame for the injuries.  As the judge noted, a “verdict may not be based on this kind of conjecture.”

The theory behind these Louisville Slugger suits is an interesting one.  Undoubtedly, an expert of some sort can testify as to the increased bat speed created by aluminum bats.  We imagine, however, that even a well-struck ball by a wooden bat could cause facial injuries.  The only way to prevent such injuries is to use baseball equipment manufactured exclusively by NERF.  Unfortunately, sport and injury often go hand-in-hand regardless of the equipment used.

The more intriguing question may be the tremendous discrepancy between the jury awards and the multi-million dollar New Jersey settlement.  While every case and jury is different, damages may not be the issue – the “smallest” verdict involved a child that was killed.  As Ted Frank at the  Point of Law blog notes:

The fact that Oklahoma caps noneconomic damages surely made a difference here: without the threat of jackpot justice, the defendant could defend itself without fear of disproportionate liability.

A factor, to be sure.

The plaintiffs  alleged that the brand-name defendants were liable for injuries caused by generic versions Reglan/metoclopramide.   Specifically, they alleged that that the defendants owed a duty to exercise reasonable care to adequately warn doctors and users about the risks of metoclopramide.  The defendants argued that under the New Jersey Products Liability Act (“PLA”), brand-name drug manufacturers could not be held liable for injuries allegedly caused by the use of a generic drug manufactured by another company. The plaintiffs asserted that their claims were not governed by the PLA and were instead negligence claims governed by common law.

The court concluded that the PLA governed the plaintiffs’ claims, noting that the focus of plaintiffs’ claims was the defendants’ failure to warn about metoclopramide’s dangers and that the state legislature’s intent was for such claims to fall under the PLA.  The court further noted that it is well-established that product identification (proof that the product that allegedly harmed the plaintiff is actually the defendant’s product) is an essential element of a plaintiff’s prima facie product liability action.  As such, the court held that the plaintiffs’ claims must fail under the PLA to the extent that the plaintiffs never ingested products sold or manufactured by the brand-name manufacturers.

The court’s  decision seems based on sound legal precedent and is in line with the decisions of other states that have evaluated the viability of innovator liability.  In case you’re counting home, so far California is the only state to adopt the theory of innovator liability.  It did so in the case Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008).  We’re every bit as shocked as you are that California would be on the outside looking on any legal issue (insert sarcasm here).

(Hat tip to John J. Sullivan at the Drug and Device Law blog).

One key question left unaddressed by the complaint is how the child was exposed to the allegedly contaminated dog food.  We can safely assume, since the child was only two months old, that he did not ingest the food on his own.  It would appear that the most likely culprit was a parent failing to wash his or her hands after handling the dog food.  As Diamond’s recall notice says, people can become infected with salmonella by handling contaminated food “especially if they have not thoroughly washed their hands after having contact with surfaces exposed to this product.”

Another key issue in this case is whether the Diamond pet food purchased by the plaintiff was even contaminated with salmonella.  Samples of the dog food purchased by the family were sent to a Monmouth County laboratory for analysis but did not test positive for salmonella.  The plaintiffs’ attorney has suggested that the contamination could have come from an earlier batch of Diamond dog food purchased by the plaintiffs.  However, the plaintiffs were supposedly buying Diamond’s dog food for months and neither of their two dogs became ill.

It should be interesting to see if the plaintiffs are able to convince a jury that there is causal connection between the illness and the dog food.  Either way, you know a pet food company is having a rough go of things when they are getting sued for making a human sick.

Apparently, Josue Chinchilla and his fiancé, Michele Callan, thought they rented Jersey’s version of the Amityville Horror house. They claimed to have heard bizarre sounds and seen flickering lights. The couple also alleges that a voice whispered, presumably in an ominous fashion, “Let it burn!”  But it gets better (or worse depending on your viewpoint). Chinchilla says that once, a “shapeless dark apparition” tugged at the sheets when he was in bed and grabbed his arm.  The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit.

In prosecuting the suit, the plaintiffs hired two sets of paranormal investigators.  These supernatural detectives say something is amiss at the home but disagree whether Chinchilla and Callan are plagued by a “residual haunting or an active haunting.” Now that’s a battle of the experts. I wonder if Plaintiff’s counsel will be able to get these two qualified under Daubert?

The landlord, orthodontist Richard Lopez, counter-claimed against the couple for breaking the lease.  Mr. Lopez’s attorney, David Semanchik, said his client has been renting the house to tenants for more than 10 years and this is the first time anyone has claimed the house is haunted. He thinks Callan and Chinchilla can’t afford the rent and are using the ghost story as cover.

We have to wonder if Mr. Semanchik considered counter claiming for the plaintiffs bringing the ghosts with them to the property?

Science occupies a strange place in American culture. By and large, Americans love science when the fruit of scientific endeavors yields technology that accommodates our lives. No one seriously questions the virtue of science insofar as we have acquired nearly absolute advantages in communications, defense, and health care. By contrast, Americans tend to hate science when we are forced to confront our personal or social beliefs. The most apparent of these tensions is in the conflict between science and religion. In the battle for supremacy, the ardent supporters of either science or religion typically charge their rhetoric with fire, brimstone, and fervor that would inspire even the most Southern charismatic preachers. In these debates, there is little room for rational discourse. Between these warring camps is the storied silent majority of Americans, not sure of what to think, who to trust, or what to believe.

We say all this to honor the intellectual courage and integrity of the New Jersey Supreme Court. Its opinion in Henderson will likely open a new front in the war on science; this time, a civil war within the American legal system. The Henderson opinion is 134 pages, and many of those pages detail scientific studies that question the usefulness of one of America’s most sacred institutions: the trial by jury. Make no mistake, New Jersey is not advocating that we abolish the jury trial; far from. But what New Jersey has done is to take the lead in forcing American legal scholars and professionals to ask ourselves, is there a better way? For decades, this question has been presented outside the formal structures of America’s governing institutions. New Jersey could have left it there. It chose not to; and now, Americans must examine our personal beliefs about jury trials in light of statistics and data. This will not be an easy self-critical analysis; in fact, it could very likely become a polarizing political issue. But if the effectiveness of the jury trial is questionable, as scientific research suggests, then better we address the matter sooner rather than later.

The narrow question in Henderson is whether there were appropriate safeguards in New Jersey to ensure that eyewitness identifications of criminal defendants had been validly obtained. As a matter of constitutional law, the United States Supreme Court had previously established a set of five factors to guide judges in passing upon the admissibility of eyewitness identifications. Manson v. Brathwaite, 432 U.S. 98 (1977). By subsequent opinion, New Jersey followed the United States Supreme Court’s lead. New Jersey v. Madison, 109 N.J. 223 (1988). These five factors were each intended to guage the subjective perceptions of eyewitnesses and to determine whether such witnesses could reasonably have made later identifications of criminal suspects (e.g., as from police line-ups). These factors were to be balanced against any evidence that the witness’s identification had been corrupted, inadvertently or otherwise, by suggestive comments or conduct by the police or other third-parties. Ultimately, the court used Henderson to refine this process and to clarify additional procedural steps.

To some extent, we are surprised that the court will continue to allow eyewitness identifications to be admissible at trial. In its opinion, the court states that “it has been estimated that approximately 7500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.” Furthermore, “of all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification.” The opinion cites the International Association of Chiefs of Police as the source of the preceding quote. If eyewitness identifications are not reliable, and they are actively causing wrongful convictions, we have to wonder whether they should be admissible at all. Perhaps it would be best to let eyewitness identifications go the way of polygraphs and confine such identifications to investigative tools.

But this is not why Henderson is important. More broadly, the court used Henderson to explore the scientific data and research regarding witness perception and memory. What it found was troubling. If there is any theme throughout the opinion, it is the court’s recurring statement that “memory is malleable.” What does this mean? To be blunt, it means that witnesses are generally not sure of what they saw, and they become less sure as time goes by.

This isn’t necessarily surprising. But consider this: the court relied on live-data studies from Sacramento and London for eyewitness identifications. The Sacramento studies involved roughly 500 people who were eyewitnesses to criminal conduct and participated in a later identification. Of the 500, 33 percent could not make an identification. Of the ones who did make an identification, 24 percent identified the “filler” (an innocent person in a police line-up). Of the ones who correctly identified the suspect, there was no data on whether the suspect was actually guilty of the crime committed. The London studies involved more than 2100 people. Of those, 41 percent could not make an identification. And of the ones who made an identification, 33 percent identified the filler.

The court also relied on controlled studies. In one study, the researchers sent an individual to have conversations of a few minutes each with store clerks. Five hundred clerks were involved, and they were not advised up front that they were participating in a study. Between two and 24 hours later, an undercover researcher would talk with the clerk about the individual they had had a conversation with and ask the clerk to pick the person out of a line-up. Seventeen percent of clerks could not identify the individual; of the ones who made an identification, 41 percent picked the filler. Perhaps more troubling, in some cases, the line-ups shown to clerks did not contain the individual they had talked with. In those cases, 36 percent of clerks still made an identification.

These problems with perception and memory are not limited to police line-ups. Research suggests they are more pervasive. In another experiment cited by the court, researchers asked participants in their study to watch a video of a car driving along a country road. The participants were first asked to estimate the speed of the vehicle. Then they were asked if they remembered seeing a barn in the video. There was no barn, but 17 percent of participants remembered seeing one.

The court also cited data from research that, not surprisingly, demonstrated how the way in which questions were asked-as in, the difference in the choice of even one word-substantially affected each witness’s perception and memory of the same event. When we apply the results of this research to the process of our judicial system, we have good reason to be concerned. Fact witnesses form the basis of any claim. But this research suggests that fact witnesses do not necessarily accurately perceive the facts they witness; and even if they do, over time, the recollection of the facts they perceived (as distinguished from the facts that happened) breaks down. Memory is malleable.

But wait; there’s more. Research further demonstrates that fact witnesses are not the only ones who experience misperception and corrupted memory. Jurors do, too. In another experiment cited by the court, researchers found that jurors (who obviously hear the same information) have different perceptions of the information heard, which leads them to have different recollections of the same set of facts.

To recap, let’s assume that an event happens in front of several witnesses. Research suggests that each of those witnesses will perceive different “facts” about that event. At trial, months or years after the event, each witness’s recollection of the “facts” perceived about the event will have changed. Each member of the jury will perceive different information about the testimony presented, and even that information will have changed by the time the jury gets to deliberation.

You must be asking yourselves by now whether there is any good news to come out of this. There’s not. It actually gets worse. If you’re wondering what the most important aspect of a juror’s decision-making process is, here’s your answer: research shows that the single most important factor for any given juror’s decision-making is whether he or she perceived a witness as “confident.” Assuming that jurors are trying to determine the truth of a matter, research demonstrates that jurors equate truthfulness with confidence. Therefore, juries are not deciding facts so much as they are deciding which witnesses are more confidently reporting the facts they perceived (whether those facts actually happened or not).

All this suggests that we may have something very, very wrong with our judicial system. Churchill famously quipped that democracy is the worst form of government except all the others that have been tried. Perhaps the same can be said about the American judicial system and the notion of trial by jury. However, we have to believe that the New Jersey Supreme Court intended its opinion in Henderson to spark a debate about how to craft a more perfect legal system. Let’s pray that the same intellectual courage and integrity that drove the court’s opinion will characterize the discussions that follow.

Recently, in Gupta v. Asha Enterprises, No. A-3059-09T2 (N.J. Ct. App. July 18, 2011), the Appellate Division of the New Jersey Superior Court affirmed in part and reversed in part a trial court’s grant of summary judgment in favor of an Edison, New Jersey restaurant that allegedly served meat-filled samosas to sixteen Hindu vegetarians.  As part of an India Day celebration in 2009, the plaintiffs placed an order at the Indo-Pak restaurant for vegetarian samosas, informing the restaurant that the food was being purchased for a group of strict vegetarians.  The restaurant filled the order and assured the plaintiffs that the food did not contain meat.  After consuming some of the samosas, the plaintiffs returned the remaining samosas to the restaurant and were advised that the food was, in fact, filled with meat.  As a result, the plaintiffs claimed spiritual damage and asserted a number of causes of action against the restaurant, including product liability and breach of express warranty.  The Court found prima facie evidence of an express warranty by the restaurant employees and reversed the grant of summary judgment as to that claim.  However, the Court affirmed summary judgment on the product liability claim, holding that, while the plaintiffs were supplied the wrong product, the food was safe, edible, and fit for human consumption.  Alas, religion and products liability remain divided.

As practitioners of the Swaminarayan principles of Hinduism,the plaintiffs believe that by eating meat they “become involved in the sinful cycle of pain, injury and death on God’s creatures, and that it affects the karma and dharma, or purity of the soul.”  While the food may have been physically safe, for the plaintiffs, meat is hardly fit for human consumption.

If the plaintiffs prevail on their express warranty claim on remand, the jury may have their hands full when calculating damages.  The plaintiffs are seeking compensation for emotional distress and economic damages in connection with a purification ritual they must now undergo to cleanse themselves.  According to Swaminarayan principles, the souls of those who eat meat can never go to God after death.  What dollar amount can be placed on eternal damnation?  After violating this principle, knowingly or unknowingly, the plaintiffs must travel to the River Ganges in Haridwar, Uttranchal, India to undergo a purification ritual which can last up to 30 days.  As the Court noted, in order to be awarded consequential damages, the damages must have been foreseeable at the time of the sale.  While that might not be the case with a fast food joint, perhaps a restaurant focusing on Indian cuisine could be charged with such knowledge.

In an increasingly pluralistic society, restaurants and manufacturers cannot reasonably be expected to produce their products in accordance with the plethora of religious principles.  However, there are some express statements here that will soon be litigated. We will have to wait and see what happens.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.

Although in “Seinfeld” the culprit was a malodorous valet who was only briefly seated in Jerry’s BMW, here, it seems, the cause of the odor was BMW’s alleged use of excessive amounts of solvent on paneling in and around the trunk. The complaint alleged that BMW knew of and has even acknowledged in a Technical Service Bulletin the existence of an “unpleasant . . . solvent or wax crayon” odor, but that it refused to repair or replace the defective insulation after the four year or 50,000 mile warranty period passed. The odor, according to the complaint, often would take several years to manifest. The complaint set forth causes of action including breach of express and implied warranties.