North Carolina Court Declares Harlem Shake “Over,” Enjoins YouTube From Accepting Further Videos Depicting Same

This morning, a superior court judge in Wyatt County, North Carolina granted a citizen’s request for a declaration that the Harlem Shake was “over as a meme” and issued a corresponding injunction prohibiting YouTube from accepting further videos depicting or otherwise seeking to capitalize upon the phenomena.  See Yorke v. YouTube, LLC, et. al., No. 2013-CVS-20213 (N.C. Sup. Ct. April 1, 2013).

This is big news.

Filed in mid-March by North Carolina resident Robert Yorke, the complaint sought a declaration that the “Harlem Shake is, and of right ought to be, over and done as a meme” and requested injunctive relief to facilitate the declaration.  The Plaintiff, a self professed “social media scholar” living in Western North Carolina, found himself irked by the increasing deluge of “Harlem Shake” videos he encountered across the web. In an affidavit accompanying the motion, Mr. Yorke complained that he could not access Facebook, Twitter, Orkut, or even Friendster, without seeing at least two “Harlem Shake” parody videos.  Claiming that the ubiquitous meme caused him personal injury, “an unyielding ennui,” and business interruption, he also seeks money damages and class certification. He conceded that the meme could, for at least some initial period of time exist and begin to wither away, but argued that time had long since passed.

A hearing on the request for declaratory relief and the accompanying motion for temporary injunction was conducted last week.  This morning, the court issued its first order in the case granting the Plaintiff’s request for the aforementioned equitable relief.

Citing Wikipedia, the court defined the “Harlem Shake” as follows:

The videos usually last about 30 seconds and feature part of the 2012 song “Harlem Shake” by American electronic musician Baauer. Baauer’s song starts with a 15 seconds intro, a bass drop, then 15 seconds with the bass, and a lion roar at the end of the first 30 seconds. Usually, a video begins with one person (often helmeted or masked) dancing to the song alone for 15 seconds, surrounded by other people not paying attention or seemingly unaware of the dancing individual. When the bass drops, the video cuts to the entire crowd doing a crazy convulsive dance for the rest of the video. The dancing style should not be confused with the original Harlem Shake dance. Additionally, in the second half of the video, people often wear a minimum of clothes or crazy outfits or costumes while wielding strange props.

(The court also apparently cribbed a bit from this article from The Atlantic by Kevin Ashton in reciting the history of the meme.).

Noting a state’s compelling interest in the “orderly processing and disposal of cultural fads,” the court invoked its inherent power in granting the request. In so doing, the court relied heavily on the American Law Institute’s Restatement (2d) of Memes, which provides:

Memes are, by their very nature, ephemeral. The accelerated pace of digital culture demands that certain Internet fads be summarily dismissed to make way for the next viral video or concept. However, as initially popular memes continue to permeate the outer reaches of Internet culture, the initial perpetrators and early adopters of such a meme will grow increasingly more weary of them. Accordingly, formal judicial rejection thereof is sometimes appropriate when the meme outstays its welcome. Although litigation surrounding the evolution of a meme is usually inappropriate, a court may rely on its inherent power to steward a stale meme more quickly to its inevitable demise.

Restatement (2d) of Memes § 135 (2012); see also In re Gangnam Style Litig., No. 12191975, MDL–3500 (E.D. Tex. January 29, 2013) (noting “short lived” nature of memes and creating three pronged test to determine appropriateness of judicial intervention in same).

Noting that North Carolina had not yet adopted § 135 of the Restatement, attorneys for YouTube argued against the injunction, noting that the matter was “nonjusticiable” in the courts and that a legislative solution would be more appropriate under the circumstances.  In re: Morrissey Concert Cancellation Litig., 872 F.3d 606, 615 (D. Colo. 2013) (finding that the court’s could not fashion a remedy to prevent the British singer from canceling future concerts as such an order would be “futile, fruitless, and without any hope of earning obedience,” and thus, the issue was more apt to be addressed by the legislative branch).  In advancing this argument, YouTube’s counsel directed the court’s attention to the recent Anti-Rickrolling Statute adopted by Texas State Legislature.  See Tex. Civ. Prac. & Rem. Code Sec. 174.001, et. seq (prohibiting any and all attempts within the state to fool, deceive, or otherwise trick a person into viewing a video featuring and/or otherwise depicting the singer Rick Astley).  When the court rejected that argument from the bench, counsel for YouTube noted that the meme was “already dying an albeit slow death” and the parties “need only await its natural end.” Rejecting that contention as a “backwards mootness argument,” the Court proceeded to grant the Plaintiff’s request from the bench.

Under the order, YouTube has five days to develop a system to prevent uploading of additional “Harlem Shake” videos.  The order also imposed on YouTube a duty to monitor its video library for pre-injunction videos which are “particularly lame” and remove them.

The court made a number of other rulings, as well. YouTube scored a minor victory when it successfully sought to exclude the proposed expert meme testimony of Antonie Dodson at the hearing.  Further, the court denied the motion to intervene filed by a series of  YouTube commenters on the grounds that they were vexatious litigants, which the court assumed, since the movants were YouTube commenters.

A hearing on YouTube’s motion for partial summary judgment on Mr. Yorke’s alienation of affection claim has been set for May 6.

We’ll continue to keep you apprised on this case as it develops.

Stuart Mauney’s Day at the Races

Some years ago, on a hot August Friday night, “Bobby Joe” got a little too close to the action in the pit area of the local dragway.  A pickup truck, pulling a trailer loaded with a race car, ran over his foot, allegedly causing grievous injury.  It was so bad that, two days later, he decided he needed to be seen by a doctor about the bruise on the side of his foot.  Can you say “vexatious lawsuit’?  Yes, Bobby Joe sued both the truck driver and my client, the owner of the dragway.  No warnings!  No barriers to keep pedestrians away from the dangerous pit area!  No bold, yellow signs to tell spectators that it is not a good idea to absentmindedly walk near the burnout strip!  Did I mention this was my second case representing a dragway?

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!

Social Media Discovery – Timing is Key

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Yesterday morning, his second submission was published at that site.  The topic: “Social Media Discovery – Timing is Key.” Jim’s post is a response to an earlier blog entry by Ernest Svenson at his Ernie the Attorney blog, which you can find here.  Jim’s post begins:

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

Read the rest of the post here.

Once you start issuing subpoenas for social media discovery, you’ve tipped your hand to your opponent.  In his post, Jim offers some suggestions on how to structure and time one’s social media discovery to maximize results and avoid potential spoliation.

Volts. Chevy Volts.

Thanksgiving is just around the corner, and you know what that means: James Bond movies will be playing around the clock. On at least three different channels. All weekend long. For whatever reason, in America, nothing says “Thanksgiving” like British spies, beautiful women, and exotic, tropical locales. And I’m thankful for that.

For many reasons, my favorite Bond movie is Goldfinger. It has the best theme song. It has some of the most iconic scenes in cinematic history (e.g., the golden girl, the laser, the nuclear device that Bond defuses with 0:07 seconds remaining). It has Oddjob. It has Bond’s love interest, who my puritan editor Dedman is allowing me to refer to only as “P. Galore.” And, perhaps most important for the Kentucky Colonel in me, the movie takes place in Kentucky – Kentucky! – and involves horseracing. This movie was destined for greatness.

But that’s not why Goldfinger is the best. It’s the best because of the interaction between 007 and the villain, Auric Goldfinger. Without question, some of the best dialogue in the entire Bond movie franchise happens between Bond and Goldfinger, and it’s usually Goldfinger doing the talking. Which leads me to the jumping off point for this post. One of my favorite quotes, not just in Bond but probably in life, comes from Mr. Goldfinger himself: “They have a saying in Chicago. Once is happenstance. Twice is coincidence. The third time, it’s enemy action.”

It was 4am on April 14, 2011 in Barkhamsted, Connecticut. Homeowner Storm Connors was awakened by the sound of commotion in his garage. He went to investigate. That’s when Connors found his garage consumed in flames. Inside were two vehicles. One, a brand new lithium-ion battery powered Chevy Volt; the other, a Suzuki Samurai that Connors had converted to electric power. Both vehicles were charging their batteries at the time of the fire, and both were badly damaged. There was some initial speculation that the Volt’s battery caused the fire; but this was never confirmed. There are also reports that the same Volt caught on fire again four days later, this time, while it was not charging.

One fire? That’s happenstance.

It was early June in Wisconsin. Three weeks before, the National Highway Traffic Safety Administration had conducted safety tests on a Chevy Volt; specifically putting the Volt through the “pole” test (which simulates a 20mph side-impact) and the “rotisserie” test (which simulates the vehicle in a collision-related roll). The Volt passed with flying colors, earning a five-star rating, which is the highest rating that can be awarded. Three weeks later, apparently while sitting at a federal junkyard, the Volt caught fire. After investigation, it was determined that the failure to de-energize the battery, along with some other case-specific circumstances, most likely caused the fire in question.

Two fires? Mere coincidence.

It was two weeks ago at Lake Norman, North Carolina. A Volt was charging in a homeowner’s garage when a fire broke out . . . . I think you know where this is going.

And now there are the alarmists. “Three times!,” they yell. “Clearly this is enemy action! Chevy and / or the Volt has declared war on American garages. They are terrorists and must be stopped. At the very least, we must bring legal action against them, suing in every state we can for civil conspiracy, RICO, and of course, unfair trade practices. These three occasions of unfriendly fire establish a pattern of conduct that prove an evil intent toward the American people. General Motors is a scourge upon civilization!”

Alright, let’s all take a deep breath and find a quiet moment to thank God we’re not among the ranks of the products hypochondriacs.

So far, the investigation of these matters has been inconclusive. Neither GM nor the government has been able to reproduce the circumstances of the fire that occurred in June. And let it not be forgotten that the June fire happened three weeks after crash testing took place. In terms of an imminent threat to health and safety, this isn’t one. And as for the fires in April and November, the causes have yet to be determined. Although at this point, there’s no more reason to suspect that the fires originated with the electric vehicles than with faulty wiring in the walls of the garages.

But let’s say that the alarmists are right and that lithium-ion batteries caused each of the three fires at issue. To them I say, “So what?” There are somewhere around 8000 Volts on the road right now. Three malfunctions out of 8000 cars ain’t too shabby. I’ll play those odds.

Personally, I hope this is all part of a very clever marketing strategy. Sales of electric vehicles seem underwhelming, due in no small part I’m sure to the reputation that EVs have slightly more power than a spinning hamster wheel. Most folks would probably be shocked to learn that an electric vehicle has enough power to start a small fire, let alone the power to burn their own house down! It would open up a whole new male market. Forget Corvettes and Porches. If you want power, get a Volt. The ads practically write themselves. “Volt. If you don’t squeeze every ounce of performance out of your car in between charges, your car will self-destruct because you don’t deserve to drive it; the Volt will also take your house, your golf clubs, and any other vehicles you may own because you don’t deserve them either. Most drivers need not apply.”

If it were up to me, I would run the ad during this Thanksgiving’s Bond-a-thon. And I would be thankful for my royalty check from GM.

Abnormal Use and the North Carolina Law Blog

As you know, we here at Abnormal Use love blogging, so much so that our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Earlier today, his first submission was published at that site.  The topic: To Text, Or Not To Text – The Lawyers Dilemma. Jim’s post is a response to an earlier blog entry by Carolyn Elefant at the Small Firm Innovation blog.

With so many people texting one another, lawyers should pause to reflect upon whether it is an appropriate manner to communicate with clients. To whet your appetite, here’s an excerpt of Jim’s post:

[T]he medium of texting – its immediacy, its brevity, and its simplicity – suggests that it may be an inappropriate medium for any communication that is remotely substantive.  Texts, by their nature, are ephemeral.  They are not filed, they are not saved, they are generally not kept in any meaningful fashion.  However, communications with one’s clients – particularly communications which offer or purport to offer any type of legal advice – should probably be kept in one’s file.  Thus, lawyers who text may face the hassle of having to download, maintain, or otherwise track their texts and preserve them for their files.  This seems like an unnecessary task, particularly when users of smart phones can simply use an email rather than a text from the same device and avoid any issues on that front.

The North Carolina Law Blog is sponsored by the North Carolina Bar Association Center for Practice Management.  A relatively new member of the legal blogosphere, it officially began in May of this year.  A group blog, it currently has 13 writers.  Jim plans to submit one post per month to the North Carolina Law Blog, and we’ll certainly direct you to any content of his at that site upon its publication.

Upon Review, Tasering Not So Funny

Fans of The Hangover undoubtedly remember the scene in which the actors are tasered by a group of children at the instruction of two police officers.  We here at Abnormal Use must admit that we found it at amusing.  Who wouldn’t find it funny watching 5000 volts of pulsed current flowing through Bradley Cooper and Zach Galifianakis?  However, after the recent $10 million jury verdict against it, TASER International might not consider this scene a laughing matter.

Very recently, in Turner v. Taser International, Inc., Case No. 3:10-CV-00125 (W.D.N.C.), a federal jury in the Western District of North Carolina ordered TASER to pay the estate of a 17-year old North Carolina resident $10 million.  According to reports, in 2008, the boy went into cardiac arrest and died inside a grocery store after being shocked in the chest for 37 seconds by a Charlotte-Mecklenberg police officer.   The boy was tased at the store by police following a verbal dispute with his boss.  The City of Charlotte settled with the boy’s estate for $625,000 in 2009 without admitting any wrongdoing.  TASER has moved for judgment in its favor notwithstanding the verdict.

Counsel for the plaintiffs issued a press release regarding the verdict, which said the jury found TASER negligently failed to warn users that discharging the taser into the chest of a person near his heart poses a substantial risk of cardiac arrest.  The press release further indicates that the medical examiner “found no drugs” in the decedent’s system, though reports that TASER has said a drug screen was not performed either at the autopsy or at any time before the lab destroyed the teenager’s blood evidence.  In any event, presiding District Judge Conrad reportedly did not allow the defense to offer evidence that three bags of marijuana were found in the decedent plaintiff’s sock during the incident and did not instruct the jury on contributory negligence in spite of defense counsel’s argument that the plaintiff’s behavior was negligent and “necessitated the use of force by police.”  Other outlets report that the teenager had committed offenses including theft, assault of other employees, resisting arrest, and assault on law enforcement.

TASER, the leading manufacturer of conducted energy devices (CEDs), is no stranger to litigation.  It has won judgment or been dismissed from more than 125 product liability cases.  The Turner verdict is only the company’s second adverse jury verdict (the first being a $7 million verdict in 2008 which was later reduced to $200,000).  With the limited information about the case in the media, we can only speculate what distinguished this case from the previous 128.  In TASER’s opinion, “compassion may have overwhelmed the scientific evidence presented in this case.”  TASER may be right, but certainly compassion was not the only factor at play.

It stands to reason that being shocked with large amounts of electricity may not be synonymous with a trip to the spa.  According to TASER’s website, however, the 5000 volts of electricity exerted by its product have a lower risk of danger than a 110 volt wall outlet.  TASER bases this conclusion on a taser’s pulsated current versus the continuous current found in a wall outlet.  Even at a pulsated rate, 37 seconds still seems like a long time to be subjected to 5000 volts of electricity – especially in the chest area.

A study recently released by the United States Department of Justice indicated that “there is currently no medical evidence that CEDs pose a significant health risk for induced cardiac dysrhythmia when deployed reasonably.” (emphasis added)  Interestingly enough, the study fails to define “reasonably.”  Regardless of how it is interpreted, the risk of injury is present. The question is what is TASER’s duty to warn?

We do not know what warnings TASER provided police officers prior to this incident.  (According to the DOJ study, TASER now recommends changing the target zone to below the chest).  Should officers have known the dangers regardless of any inadequate warning from the manufacturer?  Certainly, the officers from The Hangover didn’t get the memo.

Want more on this story?  Try this interesting piece from the South Carolina Criminal Defense Blog.

North Carolina Takes the Rare Hamburger Off the Menu

On The Discovery Channel’s Man vs. Wild, Bear Grylls travels to some of the globe’s most remote areas to demonstrate how a stranded traveler might survive.  Notable among Grylls’ survival techniques is his penchant to catch and eat snakes – raw.  Raw snake does not sound appetizing to our sophisticated palates, but allow me to commend Grylls for demonstrating the benefits of consuming meat in its most natural form.  While these animalistic methods might be useful on Man vs. Wild, North Carolina isn’t buying it.

Last week, our friends at Overlawyered alerted us to a law in North Carolina which makes serving rare or medium-rare hamburgers illegal.  According to this report from America Online, the North Carolina Division of Environmental Health requires that restaurants cook ground beef to an internal temperature of 155 degrees Fahrenheit.  The restriction, which does not apply to steaks, has been implemented to reduce the likelihood of Salmonella and Escherichia coli O157:H7.

While we admit that the sight of a bleeding piece of meat may actually be less appetizing than a live snake, we must question the necessity of the North Carolina regulation.  There is no fault in trying to protect the health and safety of your citizens, and there is no disputing the contamination concerns of ground beef.  However, it seems a little un-American to dictate how a hamburger is to served .  We need to check with Justice Scalia, but certainly the Framers of our Constitution intended free hamburger choice to be an inalienable right.

North Carolina has considered adopting the United States Food and Drug Administration standard which allows restaurants to serve rare and medium-rare hamburgers so long as a disclaimer is printed on the menus.  While we support giving individuals the choice of meat preparedness, by doing this, it appears that North Carolina is more concerned about restaurant liability than citizen health.  Apparently, the potential for food poisoning can be overlooked as long as you are aware that you are assuming the risk.

We here at Abnormal Use do not believe that Bear Grylls would recommend eating raw food on a regular basis when properly prepared options are available.  In the case of the hamburger, however, we do feel that Americans should have a choice.  If raw meat is good enough for Grylls, certainly a rare hamburger is good enough for North Carolinians.

Manufacturer of Text Message System in Truck Has No Duty to Third Party

While litigation drives change and can be an important medium of social commentary, many times it is no more than a less than well thought out attempt to get at a deep pocket. In Durkee v. C.H. Robinson Worldwide, Inc., No. 1:09cv449, 2011 WL 309693 (W.D.N.C. Jan. 28, 2011), there is such an attempt. While the facts are unfortunate, the limits of liability are not. A car with four passengers is struck by a tractor trailer, and the passengers are seriously injured. In the tractor trailer is a text message system that allows a driver to send and receive text messages while the vehicle is in operation. The passengers brought a products liability action against the manufacturer of the text messaging system, alleging that the design and manufacture was defective because an incoming text message could distract a driver.

The manufacturer won on a no duty argument. Note that there was no factual allegation that the driver received a text before the accident, or was in any other way distracted by that system, just that it’s possible that a driver might possibly be distracted. The court correctly found that the plaintiffs were not users of the product, and the magistrate judge noted that if anticipating misuse that could cause foreseeable harm to others was the test, then “no vehicle would be capable of traveling above the speed limit, car ignitions would be equipped with ignition interlock devices, and guns would not be sold to persons with poor judgment.”

Not only that, but anything that could distract, including cell phones, would be subject to a products liability claim. The focus is not on the dangerousness of the product, or the conduct of a distributor, but on the carelessness of the user, and there is already a tort for that. To the extent that this lawsuit is a cry to ban texting while driving or to further restrict drivers, then that’s fine. But the law can’t support finding liability against manufacturers from third parties injured by a user’s careless use of a product. If a brick mason carelessly tosses a brick that strikes a passerby, I don’t think anyone could argue that a viable products action lies with the injured party against the brick manufacturer. Would anyone want a brick that would disintegrate harmlessly if tossed through the air? You can think of endless examples. (Why would anyone design a truck that could jackknife?)

Serious injuries are serious. Injuries are unfortunate, and money is the best substitute that we have come up with for compensating injury. But that money can’t come from anyone, and manufacturers can’t be held responsible by third parties for the carelessness of users, when the product is being used as it should be used.

Gallivan, White, & Boyd, P.A. Opens Charlotte, North Carolina Office

Big news today from GWB headquarters. We are opening an office in Charlotte, North Carolina. Here’s the text of our preliminary press release on the matter:


Greenville, S.C. – Gallivan, White and Boyd, P.A., headquartered in Greenville, S.C., is pleased to announce that it is opening an office in Charlotte, N.C. The firm was founded more than six decades ago in Greenville, S.C. and is one of the Southeast’s leading litigation and business law firms. C. William McGee, the firm’s Managing Shareholder, stated, “We have seen a significant increase in the demand for our services in North Carolina. Our new Charlotte office will allow the firm to serve our clients more effectively and efficiently throughout the region. We look forward to providing our clients with a full array of business and litigation services throughout the state.”

With 44 attorneys and 56 support staff, Gallivan, White & Boyd was ranked by Chambers USA in 2010 as a leading law firm for business. The firm was also ranked by U.S. News and Best Lawyers as a Best Law Firm. Its new office, located in SouthPark at 5960 Fairview Road, opened in March, 2011.
More details to come shortly.

First-Ever Wrongful Death Settlement Involving Chewing Tobacco Reached

The Associated Press is reporting that Altria Group, Inc., the maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. Estate of Bobby Hill v. U.S. Smokeless Tobacco Co., FST-CV-05-4003788 (Connecticut Superior Court). The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42.

Attorney Antonio Ponvert III, who reportedly represented the decedent’s family, had some powerful ammunition in the form of “incredibly damning documents” to use in his battle against the tobacco maker. According to him, his case was bolstered by some previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers.

While this sort of information and the thought of a multi-million dollar pre-suit settlement may convince many plaintiffs’ attorneys to sign up some clients, an Altria spokesman has reportedly issued a statement to assuage such desires. According to the spokesman, “[the company has] no intention of settling cases such as this in the future.” In fact, there were several circumstances at issue here that made this particular claim unique.

First, Altria acquired the named defendant, U.S. Smokeless Tobacco Co., last year, and reportedly was perhaps honoring an agreement that that company had made with the plaintiff prior to the acquisition. Second, it also is possible that Altria simply wanted to resolve all legal issues remaining from its acquisition. Third, the plaintiff was not a drinker or user of cigarettes, which are risk factors tobacco companies often point out to as possibly having caused the cancer. Finally, the plaintiff was a relatively young, married father of two who died in a particularly painful and gruesome manner. The plaintiff had undergone multiple surgeries to remove his tongue.

This is certainly an interesting first-of-its-kind. It remains to be seen whether this is truly a unique event, or simply the first of a new strategy for Big Tobacco product liability matters.