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.

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).

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?

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).

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).

Recently, we provided some commentary about an Alabama court’s interpretation of what is “reasonably foreseeable” with regard to the operation (or accidental operation) of a handgun.  As a quick reminder, that case involved a man who wound up shooting himself in the stomach because he carried his gun without any safeties engaged.  That court denied the gun manufacturer’s motion for summary judgment, buying the argument by the plaintiff’s lawyers that a gun manufacturer should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.” Today, we will continue our inquiry into what different jurisdictions perceive to be “reasonably foreseeable” in the products liability context.  Conveniently, this also continues another journey we seem to be on: the search for the stupidest plaintiff.

The case is Mohr v. Yamaha Motor Co., Ltd., A-5194-10T4 (N.J. Super. Ct. App. Div. July 19, 2013).  The plaintiff in this case lifted up the back of his friend’s Yamaha snowmobile–while the engine was running.  The track broke while the end was in the air and gave the plaintiff such a bad leg injury that the leg had to be amputated.

The plaintiff sued Yamaha on theories of products liability, “claiming that . . . Yamaha had failed to provide an adequate warning against lifting the machine while it was running.”  At trial, the jury found Yamaha liable for failure to warn.  There is some interesting commentary about the presence and adequacy of the warnings, but we find the issue of “foreseeable misuse” more interesting, in light of our recent Alabama gun case.  The court in this case provided some reminders about use and misuse under New Jersey law:

Here we go again. It’s another hot coffee case.

According to NorthJersey.Com, there’s a brand new McDonald’s hot coffee case brewing. (Apologies for that pun). Here’s the info:

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.

…

Arnold insisted on Monday that Borbolla’s lawsuit is not frivolous.

“This is a serious case involving lack of due care on the part of McDonald’s,” she said. “If the naysayers saw the burns on my client’s genitals, they would be speechless.”

Again, let’s not confuse the issue of severe burns with liability. Simply because the coffee in question may have caused injuries, it does not mean that McDonald’s is liable.  That is a mistake that many have made in discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve not yet  read the complaint, but if the news report is accurate, then the Plaintiff, Mr. Borbolla, took the cup of coffee from a McDonald’s employee, presumably from the front counter of the restaurant, made his way to his seat, and then spilled the hot beverage on himself as he proceeded to sit down at a table. The liability case will focus extensively on that brief journey.

We’ll keep you posted on this one. Our favorite part of the article is the following sentence, which also serves as the tagline to the AP file photograph of a McDonald’s logo: “This is not the first time McDonald’s coffee inspired a lawsuit.”

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

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.

Over the last few years, Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats, has endured much litigation.  In 2009, a Montana jury awarded a family $850,000 after their son was killed by a ball struck by the aluminum bats.  Last month, the company settled the claims of a New Jersey teenager severely injured in a similar accident for $14.5 million.  The multi-million dollar settlement came on the heels of another $951,000 verdict from an Oklahoma federal jury.

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.

A basic principle of products liability law is that liability follows the product in the chain of distribution. In other words, if the manufacturer did not make the product, it cannot be held liable.  But precedent and legal principles be damned, plaintiffs’ attorneys have been pushing a new theory of  liability called “innovator liability.” Under this theory, brand-name drug manufacturers (the “innovators”) may be liable for injuries to plaintiffs who only ingested generic versions of their drugs.  In other words, it requires brand-name manufacturers to answer for injuries allegedly caused by drugs they did not manufacture.  Sounds a bit ridiculous, right?  Fortunately, a New Jersey court recently said “no dice” to innovator liability in the case of Coundouris v. Wyeth, et al., No. ATL-L-1940-10, 2012 WL 2401776 (N.J. Super. Jun. 26, 2012) [PDF].

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).