Plumber Sues Ford Dealership After His Old Truck Is Recruited for Syrian Civil War

Reportedly, when Texas plumber Mark Oberholtzer sold his 2005 Ford F-250 Super Cab to a Houston Ford dealership, he never expected that he would subsequently see his truck being used by Islamic militants in Syria’s civil war:

Islam

So how did his truck end up in Syria? In October 2013, Oberholtzer took the truck to AutoNation Ford Gulf Freeway in Houston, Texas to trade it in for a 2012 Ford F-250. Oberholtzer alleges that he initially intended to remove the “Mark-1 Plumbing” decal from the truck, but the salesman stopped him on the basis that removing the decals would damage the vehicle. The truck was then allegedly auctioned off in November 2013 and subsequently shipped from Houston to Mersin, Turkey. Approximately a year later, the above photo was tweeted by a contributor to the Long War Journal. Oberholtzer did not expect to see his truck again under those circumstances.

Nor did Oberholtzer expect to experience an apparent exception to the old adage that “any publicity is good publicity.” Apparently, in addition to the company name, the side of the truck bore Oberholtzer’s phone number on the door, including the area code. According to the lawsuit filed by Oberholtzer, on December 15, 2014, the day the plumbing truck photo was tweeted, “Oberholtzers’s cell phone, work phone and office phone had ‘received over 1,000 phone calls from around the nation.’”  According to the complaint:

These phone calls were in large part harassing and contained countless threats of violence, property harm, injury and even death. These phone calls included, but were not limited to, individuals who were: (a) irate and yelling expletives at whomever answered the phone; (b) degrading to whomever answered the phone regarding their stupidity; (c) singing in Arabic for the duration of the phone call or voice message recording; (d) making threats of injury or death against Mark-1’s employees, family, children, and grandchildren in violent, lurid and grossly specific terms; and, (e) directing expletive-laced death threats to whomever answered the phone.

Oberholtzer allegedly shut down his business for a period of time, and he has been visited by federal officials who have supposedly advised him to “protect himself.” When his truck was featured on the final episode of “The Colbert Report,” the harassment and threatening phone calls apparently reached a fever pitch.

Colbert

Oberholtzer seeks $1,000.000.00 for invasion of privacy and appropriation of name.

Texas Court Catches Case of Ebola Litigation

In a previous post, we discussed the lawsuit filed by Kaci Hickox to challenge the quarantine imposed upon her following her return from a stint in Africa during which she treated Ebola patients.  Another Ebola-related lawsuit has now been filed.  Nina Pham, the nurse who contracted Ebola in a Texas hospital, filed a complaint in the district dourt of Dallas County, Texas against Texas Health Resources, Inc. (THR) the hospital system for which she worked at the time she contracted Ebola.

Ebola Post

The complaint, which can be viewed here, alleges that the hospital had no plan to deal with Ebola and that the protocols in place were not adequate to protect employees against the virus despite the hospital’s advance knowledge that it should be prepared to deal with Ebola.  The thirty-six page, artfully written complaint is actually an interesting read, and it contains a number of shocking allegations.  It even has pictures!  abcNEWS outlined some of the more surprising allegations in the lawsuit here.  Some of the more interesting claims deal with the hospital allegedly violating HIPAA by releasing video footage of Nina Pham and disclosing details of her treatment without her consent.

Pham is represented by Charla Aldous and Brent Walker of the Aldous Law Firm in Dallas, Texas.  According to the docket, THR has not yet filed an answer, nor have any attorneys entered an appearance on its behalf.  According to this American Lawyer article, the hospital should have no shortage of Ebola litigation teams to select.

Trolls Gonna Troll? Win A $533 Million Patent Suit . . . Rinse Repeat.

Smartflash is what some in the tech industry might call a patent troll. It licenses patents but doesn’t actually create products.  Last month, Smartflash obtained a $533 million dollar verdict in a patent case against computer giant Apple.  Now, the company has filed another suit against Apple over the same disputed patents that were at issue in the first case.

In the original lawsuit, Smartflash accused Apple of infringing upon a number of patents relating to the access and storage of data, digital rights management (DRM), and payment systems.  The company claimed that these patents were used in a number of devices, including the iPhone and iPad. As noted above, in February, a Texas jury award Smartflash a $533 million verdict against Apple for that alleged infringement.

Apparently, Smartflash is not satisfied with $533 million verdict.  The day after that obtaining verdict, it filed another suit against Apple over these same patents.  They claim that the iPhone 6 and several other Apple products that infringe on their patents were not covered by the first lawsuit because they came to market after the first suit was too far along.  Now they want to be further compensated.

While these cases are interesting, it may all be for naught. As Bloomberg has reported, Apple has already been successful in getting similar verdicts from this particular district overturned. We’ll see what happens.

Colorado Inmate Stands Up For Dez Bryant, Cowboys Fans Everywhere (For Only $89 Billion)

It is the week of the Super Bowl, the biggest sporting event of the year, and we here at Abnormal Use are having trouble getting excited. It has nothing to do with our beloved Carolina Panthers bowing down to the Seahawks earlier in these playoffs. No, our excitement is subdued because this is the first Super Bowl in our memory involving two teams that arguably shouldn’t be there. The Patriots are marred by “Deflategate” paranoia. The Seahawks are technically scandal-free, but everyone knows the NFC champ would have been the Dallas Cowboys but for the overturn of Dez Bryant’s crucial fourth quarter catch against the Packers. The NFL won’t do anything to stop the injustice.  Fortunately, Colorado inmate, Terry Hendrix, is not so constrained and has filed a lawsuit against the NFL, Commissioner Roger Goodell, and referee Gene Steratore seeking $88,987,654,321.88 over the abysmal call that kept the Cowboys out of the big game.

According to the complaint filed in the U.S. District Court for the Northern District of Texas, Hendrix, who apparently serves as counsel for “Dez Bryant, all Dallas Cowboys fans and all people in or from the sovereign republic of Texas,” is suing the defendants for negligence, breach of fiduciary duty, and “wreckless disregard.” He alleges that the video reversal of Bryant’s catch was “fraud, theft, and gross stupidity.” As a result, Hendrix claims that victory was clearly stolen from the plaintiffs because “the Cowboys’ offensive line would have perfectly created an ‘Autobahn’ for DeMarco Murray to drive into the endzone for the score and victory.”  Obviously.

The Super Bowl is big business. The least the NFL can do is make sure the right teams make it to the big game.  Like Hendrix said, the Cowboys obviously would have won but for the blown call (despite how they played the other 59 minutes).  And, they obviously would have gone on the road to beat Seattle where the Packers couldn’t win even when Russell Wilson throws four interceptions.  Just cancel the Super Bowl already and give the Cowboys the trophy.

Credit Hendrix for standing up for Bryant, the Cowboys, and the great state of Texas and trying to honor the integrity of the game.  We are certain when he recovers $89 billion from the NFL, Hendrix will share it with them evenly.

Chick-Fil-A And The Case of the Heart Attack Causing Cherry

With a fact pattern straight from a torts textbook, a Texas woman has sued Chick-Fil-A and its cherry supplier, Dell’s Maraschino Cherries Co., Inc. after the cherry on her milkshake allegedly caused her to have a heart attack.  According to a report from the New York Daily News, Cyndi Scruggs purchased a milkshake topped with whip cream and a maraschino cherry from a Chick-Fil-A restaurant in Plano, Texas.  She bit into the cherry and discovered that it allegedly “had not been properly de-pitted.”  The improperly de-pitted cherry caused her to fracture two teeth below the gum line.  To make matters worse, Scruggs developed a gum infection and sepsis which allegedly caused her heart attack.  She is seeking between $200,000 and $1 million in damages.

This is case is certainly a test in foreseeability and proximate causation.  Assuming that Scruggs did bite into a faulty cherry and that her damages allegations are valid, it seems very tenuous on the surface that a cherry could lead to a heart attack.  Nonetheless, if Scruggs can prove an unbroken chain between the cherry and the attack then she may be able to recover, as crazy as it may be.

Damages aside, we here at Abnormal Use have to question why anyone would eat the milkshake cherry in the first place.  We always thought the cherry was more visually appealing than edible. In our opinion, cherries are a Jolly Rancher flavored and should never actually be consumed.  Of course, there is no prohibition on the consumption of such things.  But shouldn’t we assume the risk of injury for biting into something that has no valid purpose on the milkshake in the first place?

Texas Follows Pennsylvania’s Lead And Rejects “Any Exposure” Theory In Mesothelioma Case

Science

In asbestos injury cases, plaintiffs typically advance the theory that any exposure, no matter how slight, is a substantial contributing factor in causing the plaintiff’s asbestos-related disease. This is known as the “any exposure” or “each and every exposure” theory. If this argument is successful, it allows the Plaintiff to pursue numerous defendants simultaneously without having to quantify the amount of asbestos to which an individual defendant’s product caused him to be exposed. Not too long ago, the Texas Supreme Court has joined the list of Courts which have rejected the theory.

The Texas Supreme Court previously held that the theory was insufficient to establish causation in asbestosis cases. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). In response to attempts by plaintiffs to distinguish the holding to avoid its application in mesothelioma cases, the Texas high court has recently held that the theory is insufficient to show specific causation in mesothelioma cases. Bostic v. Georgia-Pac. Corp., 10-0775 (Tex. July 11, 2014) (holding that “even in mesothelioma cases proof of some exposure or any exposure alone will not suffice to establish causation.”) (quotations omitted). In Bostic, the appeal followed a jury verdict of $11.6 million with an allocation of 75 percent of the fault to a joint compound manufacturer. Id. In affirming the ruling of the Court of Appeals, which reversed and rendered a defense verdict, the Texas Supreme Court found that the Plaintiff had not sufficiently established specific causation with respect to the joint compound manufacturer where the Plaintiff: (1) relied on experts who testified that any exposure to asbestos should be considered a cause of his mesothelioma; (2) failed to quantify the aggregate dose, (3) failed to quantify the dose attributable to the joint compound manufacturer, and (4) failed to show that the dose fairly assignable to the joint compound manufacturer “more than doubled [the plaintiff’s] chances of contracting mesothelioma.” Id. at *19 (“And even in a single-exposure case, we think that proof of dose would be required . . . ‘One of toxicology’s central tenets is that the dose makes the poison.’”).

The Bostic court joins the growing number of state courts which have struck down the each and every exposure theory. See, e.g., Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 (Pa. 2012) (holding that the theory was inadmissible after finding that “Dr. Maddox’ any-exposure opinion is in irreconcilable conflict with itself”); Free v. Ametek, No. 07-2-04091-9 SEA (Wash. Super. Ct. King County Feb. 29, 2009) (applying the Frye standard and holding that the theory “is not a scientifically proved proposition that is generally accepted in the field of epidemiology, pulmonary pathology, or any other field relevant to this case.”); Butler v. Union Carbide Corp., 712 S.E.2d 537, 549 (Ga. Ct. App. 2011) (affirming the lower court’s ruling that the theory did not “properly utilize[] the scientific method to make scientifically valid decisions in reaching his specific causation opinions as required by Daubert.”).

The GM Ignition Switch Defect and The Texas Manslaughter Charge

the fugitive

By the time this blog post goes live, GM will probably have made public the results of its internal investigation regarding how it responded to an ignition switch defect.  Part of the inquiry involves delving into why GM apparently waited more than ten years to recall 2.6 million small cars with faulty ignition switches linked to at least 13 deaths. Reportedly, a Texas woman, Candice Anderson, was recently informed that a GM ignition defect was responsible for her fiance’s 2004 death, in connection with which she pled guilty to manslaughter.  Apparently, she was driving a Saturn vehicle and her fiance had the misfortune of being the passenger.  The car left the roadway without leaving any skid marks or other signs of causation.  Anderson survived.  Her fiance perished. Anderson happened to have trace amounts of anti-anxiety medication in her system.  Anderson was charged with manslaughter, but pled guilty to negligent homicide. Anderson reportedly wants an apology from GM.  Unless the statute of limitations has expired, we have a feeling that Anderson may be destined for more than an apology.

Life in the Fast Lane, Everything, Zero Time (The Affluenza Defense)

The Eagles’ hit, “Life in the Fast Lane,” depicts a life of excess involving drugs, booze, and generally “everything, all the time.”  What the song does not address is the consequences of one’s actions if his or her life in the fast lane comes in contact with innocent pedestrians and ends in death or serious injury.  A recent Texas case suggests that the outcome depends on how wealthy your parents may be.

You may recall the 2013 criminal trial of Ethan Couch, the affluent teen who killed four people and catastrophically injured another while driving drunk (his blood alcohol was reportedly three times the legal limit).  At the criminal trial, Couch’s defense counsel retained an expert witness who testified, in part, that Couch was the victim of “affluenza,” an ailment characterized by being the product of wealthy and privileged parents who never set limits for Couch.  Couch’s counsel disputes that it relied on an affluenza defense, but regardless, Couch was not required to serve any time in prison for his crimes. As you might imagine, there was a media frenzy at the time about the nature of that defense.

At least one civil suit has been filed in connection with the accident.  A teen riding in the back of Couch’s truck at the time of the accident suffered a debilitating, permanent brain injury, and he has apparently incurred at least one million in medical bills.  He filed suit against Couch’s parents.  Couch’s father’s business was also joined in the lawsuit, as Couch was driving a vehicle owned by the business at the time of the accident.  The suit has reportedly settled for over $2 million.

Though tempted, we at here at Abnormal Use decline the opportunity to weigh in more formally on the criminal or civil outcome, except to say that there is something very curious about this affluenza theory.  In Couch’s criminal case, there were few consequences for his crimes, but his defense rested on his parent’s wealth. In the subsequent civil litigation, his parents (and/or their insurance carrier) paid a handsome sum.

Perhaps the expert’s affluenza opinion was a bit of foreshadowing more than anything else?

Six Flags Celebrates Ride Re-Opening, Faces New Suit

Back in July, a Texas woman died after being thrown from the 14-story tall “Texas Giant” roller coaster at Six Flags Over Texas. Initial statements did not specify the cause of the woman’s death; however, others on the ride speculated her death was attributed to a safety bar:

[The woman] goes up like this. Then when it drops to come down, that’s when it (the safety bar) released and she just tumbled. . . . They didn’t secure her right. One of the employees from the park — one of the ladies — she asked her to click her more than once, and they were like, `As long you heard it click, you’re OK.’ Everybody else is like, `Click, click, click.’ Hers only clicked once. Hers was the only one that went down once, and she didn’t feel safe, but they let her still get on the ride.

Regardless of the cause, Six Flags closed down the coaster until last weekend while it investigated.

Since the re-opening, the woman’s estate filed a wrongful death lawsuit against the amusement park in Texas state court. In the suit papers, the estate alleges that post-accident inspections revealed that various parts of the ride’s security systems were experiencing “inconsistencies and intermittent failures.” After the woman’s death, Six Flags allegedly had to replace a defective “limit switch” which shows the lap bar is in place. The estate seeks at least $1 million in damages.

Six Flags has apparently never revealed the findings of any internal investigation. The ride is now equipped with new seat belts and redesigned restraint bar pads (implicating subsequent remedial measures concerns, naturally).

Oddly, Six Flags is now also providing a sample seat at the entrance of the ride for people to judge for themselves whether they fit safely. We here at Abnormal Use will withhold any opinions on whether Six Flags should bear any responsibility for the woman’s death. We will say for any future accidents, however, that we would hate to resort to the “plaintiff had the opportunity to try the seat out ahead of time” defense. Hopefully, Six Flags is making this move to ease the fear of future riders. We can only hope.

Texas Woman Adds New Twist to Classic Banana Peel Case

In every 1L Torts class, new law students encounter cases involving plaintiffs who slipped on banana peels. Each case assesses the liability of premises owners based on a variety of factors, such as the condition or location of the peel. But just how many rogue banana peels are out there, anyway? Maybe it is time for casebooks to start updating their material.

They can start with the case of the woman suing a steakhouse chain after slipping on a peanut.

According to a report out of the El Paso Times, a Texas woman is seeking $1 million from Texas Roadhouse after slipping on a peanut shell thrown on the floor by a patron. The restaurant passes out peanuts to patrons and permits the shells to be discarded on the floor. The woman claims that Texas Roadhouse is responsible for the shells and should have either warned her of their presence or removed them.

Aside from the peel/shell distinction, this case is remarkably different than those read in law school. For starters, unlike the banana peel cases, this case doesn’t involve a single item mistakenly left on the floor. For anyone who has ever dined at these “Texas-style” steakhouses, peanut shells are scattered throughout the floor. Their condition is open and obvious.

More importantly, this case involves an object known by the landowner to be on the floor. Questions involving the condition of the shell or how long it has been left on the floor are moot. Instead of debating such minutiae, the inquiry can shift to whether the shells constituted a hazard and whether the plaintiff should have been aware of their presence.

These are, of course, questions that we actually encounter from time to time in our practice.