New Kids (Toy) on The Block: Water Balz

We recently reported on the Consumer Product Safety Commission new safety ban on Bucky Balls.  Well, now, there’s a new allegedly “dangerous” toy ball on the market.  This time, it’s a product called Water Balz, marketed by DuneCraft Inc.

These brightly colored balls are about the size of a marble, but they can grow to the size of a racquetball when placed in water.

You can watch the product in action here.

What makes Water Balz so “dangerous?”  Well, much like the Bucky Balls, they don’t mix well with toddlers who treat them as food.  Two Texas parents recently found this out when their toddler ingested one of her older sister’s Water Balz.  When the toddler started having stomach problems, the parents suspected she had eaten one of the Water Balz.  Their concerns grew when they read the label, which explained that the balls expand up to 400 times if placed in water.  The parents took the girl to the hospital, but over the next 48 hours, the girl’s belly grew bigger and bigger, and her symptoms didn’t resolve.  Finally, the doctors operated.  In so doing, they cut open her intestine and discovered a bright-green Water Balz nearly an inch and a half across. Reportedly, the young toddler has fully recovered.

For now, no lawsuits have been filed over Water Balz.  We suspect that will change in the future.  Water Balz again raise the age old question for toys that cause injury.  Namely, whether the injuries are due to some inherently defective nature of the product or poor parental supervision.  I don’t think anyone would dispute that ingesting a chemical ball designed to expand in water creates a substantial risk of harm.  But the real question is, given that the product is not intended for ingestion, is it an unreasonably dangerous product?

Obviously DuneCraft’s CEO, Grant Cleveland, doesn’t believe Water Balz are unreasonably dangerous.  He told Reuters that said he was sorry to learn of the incident, but placed the blame squarely on the parents.  Said he:  “An eight-month-old has no business being near that product. Trying to turn it in to a public risk is absurd.” He also noted that the Water Balz product already carries warnings on the label and that the product is only recommended for kids over 3 years old.

I guess we’ll have to wait and see what happens.  It is not surprising, however, that some attorneys have already put out the APB for Water Balz plaintiffs.

Mechanical Bull Tosses Rider, Prevails in Court

“Man goes to bar.  Man consumes alcohol.  Man rides mechanical bull.  Man falls.”

A familiar story to anyone who has ever visited a Texas-style honky tonk.  The synthesis of alcohol and a simulated rodeo is difficult for anyone to resist.  Unfortunately, the combination can also lead to embarassing falls and, in some cases, injury.

Sounds like the makings of a good lawsuit, right?

In Thom v. Tonk, No. 03-11-00700-CV (Tex. App – Austin, Aug. 30, 2012), a Texas man filed suit against Rebel’s Honky Tonk after injuring his back after falling from the bar’s mechanical bull.  The man signed a release before riding the bull but failed to disclose his chronic back condition to the operator.  Nevertheless, the man rode the bull, found himself thrown from it, and fractured two vertebrae in his back.

The trial court granted the bar’s motion for summary judgment on the basis of release and assumption of risk.  On appeal, the man argued that the release was inconspicuous and that actual knowledge could not replace the requirement that the release be conspicous.  However, the Austin Court of Appeals found that the release’s title, “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK,” left little doubt as to the document’s purpose.  Furthermore, the man testified at his deposition that he understood that the release was a waiver in the event he was injured.  So there goes that argument.

Notwithstanding his signature on the release, the man also argued that because he did not read the document, he could not have known the risks involved in riding the bull.  But then again, the man did testify that before mounting the bull, he did not witness anyone ride without falling.  And, of course, this is Texas, so undoubtedly the man has witnessed a rodeo a time or two.  In any event, the court was unpersuaded, holding that one is presumed to a know the contents of a contract that one signs.

A difficult sale it is to contend that one did not appreciate the risks of riding a mechanical bull.  Unlike the rodeo, the purpose of the mechanical bull is more than an 8-second ride.  The end-game is the fall.  Never has a mechanical bull operator thrown his hands up after a customer’s short stint on the bull saying, “Ok, Ty Murray.  I give up.  You are too good.”   You get on the mechanical bull to get tossed and to provide a good laugh for the crowd.

Injuries are obviously no laughing matter.  But, in this case, mechanical bull suits belong in the courtroom like a bull belongs in a china shop.

The Journal of Frivolous Tort Claims: Carrillo v. The Dallas Cowboys (Post 2 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Steve’s views, while yesterday, as you may recall, we shared Nick”s thoughts. We hope you enjoy reading about it as much as we did.]

Preposterous.

The Dallas Cowboys were sued last week by Plaintiff Jannelle Carrillo, who alleged that she sustained third-degree burns while sitting on a bench outside the stadium before a preseason game in 2010. The allegations of the complaint, which is linked here, speak for themselves. The bench in question was made of black marble, and “was uncovered and openly exposed to the extremely hot August sun. The combination of the nature of the black, marble bench and hot sunlight caused the bench to become extremely hot and unreasonably dangerous. No signs were posted at or near the bench warning that it was too hot for persons to sit on.” It is alleged that as a consequence of the unreasonably dangerous condition of the bench, “plaintiff suffered third degree burns to her buttocks,” which required her to undergo hospitalization and skin grafts that have left her disfigured.

Ms. Carrillo’s injuries are no laughing matter. But the fact that she would try to hold the Cowboys franchise accountable is utterly preposterous. The sun is hot. Things left out in the sun, in August, in Texas, get hot. Are we really supposed to believe that Ms. Carrillo needed a written warning about any of this? Please.

But let’s give her the benefit of the doubt. Let’s assume she didn’t know that the sun made stuff hot. It seems to me she would have figured out that the bench was hot approximately 1 split second after she sat down. Why not just stand up? The complaint doesn’t say how long Ms. Carrillo continued to sit on the bench, but I’m willing to bet she didn’t stand up for a while. I bet she kept on sitting there, complaining to her friends and anyone who would listen, “Man, this bench is hot.” Meanwhile, her goose was slowly getting cooked.

Generally, there is no duty to warn folks against open and obvious dangers, and dangers – to the extent this bench presented one – don’t get much more open and obvious than this. It is my prayer to the God of justice and wisdom that this case is thrown out on a motion to dismiss.

Jerry’s World, Sun Subject of New Texas Suit (Post 1 of 2)

[Editor’s note: This Dallas Cowboys lawsuit was of such great interest to us that we decided that both Steve Buckingham and Nick Farr, fine writers of this site, should comment upon it. Accordingly, today, we offer Nick’s views, while tomorrow, we’ll share Steve’s thoughts. We hope you enjoy reading about it as much as we did.]

In 2009, Jerry Jones and the Dallas Cowboys unveiled the billion dollar Cowboys Stadium in Arlington, Texas.  With its plethora of unique and extravagant features, the stadium is the closest thing the National Football League has to a work of art.

Now, it is the subject of a lawsuit.

When we here at Abnormal Use heard that “Jerry’s World” was involved in a civil suit, we just knew it had to be some devastating accident involving the 2,100 inch video screen suspended over 60 yards of the field.  (Seriously, how do they keep that think hanging?)  To our surprise, however, it is not the monstrous video board at the center of the personal injury litigation, but, rather, a bench.  A simple black marble bench.

According to reports, a Texas woman has sued the Dallas Cowboys and Jerry Jones in the Tarrant County District Court after she allegedly sustained third-degree burns on her buttocks after sitting on the marble bench.  The woman, attending a Cowboys scrimmage in August 2010, sat on the bench in 100-plus degree temperatures for an undisclosed amount of time while wearing full-length pants.  She alleges that the combination of the black marble and the hot sun made the bench extremely hot and unreasonably dangerous – a condition about which the Cowboys allegedly failed to warn her.

The words “extremely hot and unreasonably dangerous” immediately conjure up thoughts regarding the infamous hot coffee litigation.  Like freshly brewed coffee, a black object basting in 100 degree temperatures will be hot.  Common sense and logic would suggest that the woman bares at least some responsibility for her injuries.

Unlike hot coffee, however, there may be issues of fact regarding whether the common person should appreciate the risk of sitting on a bench made of marble as opposed to a less heat-absorbent material.  Nevertheless, it seems a bit ridiculous to require a warning that a bench resting in the Texas sun may be hot.  Should they also warn that a bench sitting in the rain may be wet?

Of course, the naysayers will suggest that Jones obviously had the money to purchase a sign or design an external bench out of a non-heat-absorbent material.  But should he have to?  This is a marble bench - clearly not a case of a company skimping on costs by cutting safety measures.

When a $158 million settlement is a “Victory”

On Thursday, January 19, mega-company Johnson & Johnson and the State of Texas reached a settlement for the bargain price of $158 million in a Medicaid fraud lawsuit.  The allegations?  That J&J committed Medicaid fraud by engaging in illegal marketing activities and providing kickbacks to boost sales of the anti-psychotic drug Risperdal, used primarily to treat schizophrenia and bipolar disorders.  The suit also alleged that J&J told doctors that the drug could be used to treat children, for which it did not have FDA approval.  Oops.

And why was $158 million a bargain?  Well, consider what has happened to the company in other states that have also sued J&J on similar theories.  In Louisiana, the Court ordered the company to pay $258 million; in South Carolina, the bill was a cool $327 million.

As reported by the Washington Post, then, $158 million doesn’t look so bad:

“For Johnson & Johnson, it’s a mighty easy result,” said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.”

Indeed.

“Objection, Form” v. “Object to the Form”

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  ”Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.

Defense Verdict in Jamie Leigh Jones Case

Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Mark Cuban’s Motion for Summary Judgment (And What It Means)

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise.  The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues.  In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise.  If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument.  If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them.  The readers of our motions and briefs have much to do and many other items to review.  We suspect that they, most of all, would appreciate efforts to simplify the briefing process.  After all, a picture is worth a thousand words.

Just ask Mark Cuban.

Disclaiming Physician Patient Relationship Leads to Fraudulent Joinder in Texas

The plaintiffs’ bar rallies around the cry that they are the only ones fighting for justice. Evil insurance companies further victimize already injured parties, blah, blah, blah. It’s unfortunate that so many plaintiffs’ lawyers seem unwilling or incapable of acknowledging that their lawsuits are involuntary transactions and legal strategies are, for the most part, economic choices.

Take for example, McCall v. Genentech, No. 3:10-CV-1747-B, 2011 WL 111440 (N.D. Tex. Jan. 12, 2011). In that suit, the Plaintiff claimed she was injured by the prescription drug Raptiva. In attempting to treat her psoriasis, she purportedly took the drug and then spent 25 days in a hospital and experienced continuing injuries. She filed a lawsuit in Texas state court naming Genentech (not Initech) and XOMA, who aided in the manufacture of Raptiva, as well as her physician, who prescribed the drug (who happened to be a clinical researcher of Raptiva), and two entities for which her physician worked. The latter three defendants were non-manufacturing defendants who just happened to be nondiverse from the Plaintiff. Accordingly, the defendants removed the suit to federal court, alleging improper joinder, and the Plaintiff predictably responded with her own motion to remand the case back to state court.

Perhaps the suit was originally filed in state court, rather than federal, because there is no mandatory scheduling order, no early disclosure of experts (meaning less upfront costs in expert reports), and all those things that can make litigation expensive. However, the Plaintiff has a problem because Texas has a limitation on damages as well as some mandatory expert disclosures in medical malpractice actions that make litigating in state court a lot like litigating in federal court. Since the plaintiff’s attorney’s job is (apparently) to maximize the return on an investment, the Plaintiff’s lawyer decided to disclaim any causes of action based on the physician-patient relationship in the original state court petition. Thus, the Plaintiff could still hope to squeeze some settlement value out of the case without costly expert discovery.

The strategy failed. By disclaiming the physician-patient relationship, the Plaintiff had no relationship on which to base a cause of action against the non-manufacturing defendants because a clinical researcher owes no duty to the public. Without viable causes of action against those defendants, the Plaintiff lost on the motion to remand and remained in federal court.

We’re glad that the federal rules monetize “justice” in the way that they do. Plaintiffs and their lawyers should bear some meaningful cost of the litigation up front as a means of speeding the litigation towards its end. There’s nothing wrong with trying to level the playing field as far as fees and costs go, as there should be economic pressures on both sides to resolve cases. Shouldn’t all sides be able to say that the Plaintiff’s case should be resolved quickly so that she can move forward with her life? Too many times, cases languish because there is no pressure to move the case forward. Whatever the case, it’s always nice for defense counsel to prevail because an opponent cannot or did not properly strategize.

Manufacturer Remains On the Hook in EIFS Litigation in Texas

Since the 1990s, EIFS litigation has been a thorn in the side of the construction and insurance industries. Improper installation of EIFS (Exterior Insulation and Finishing System), sometimes called “synthetic stucco,” on homes across the United States resulted in a tremendous amount of litigation. Class action suits and individual litigation have been plentiful, with defendants often pointing the finger at each other as they ferret out responsibility for who must pay for the damages.

The Texas Supreme Court recently weighed in on some of these issues in Fresh Coat, Inc. v. K-2, Inc., —S.W.3d —-, No. 08-0592, 2010 WL 3277130 (Tex. August 20, 2010). The Court addressed the duty of a synthetic stucco manufacturer to indemnify a contractor that installed the stucco against claims of more than 90 homeowners who sued for structural damage, termite problems, and mold. The defendants settled the litigation with the homeowners, and the case proceeded to trial on the various claims that the defendants brought against each other. The jury awarded judgment to the contractor, Fresh Coat, for all damages requested against the manufacturer, K-2, Inc., which included indemnification for settlements that Fresh Coat made to the homeowners and to the homebuilder. The intermediate court of appeals in Beaumont affirmed the decision, with the exception of the amounts that Fresh Coat paid to the homebuilder. Both K-2, Inc. and Fresh Coat appealed.

In its appeal, K-2 urged the Supreme Court to rule that Fresh Coat, as a contractor for the installation of the synthetic stucco, did not qualify as a “seller” and that EIFS is not a “product,” such that K-2 would not have indemnity obligations arising under Chapter 82 of the Texas Civil Practices and Remedies Code. K-2 claimed that products placed into the stream of commerce and integrated into a house are transformed into real property and no longer retain their status as “products.” The Court disagreed, holding that a product is something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption. Here, EIFS was a synthetic stucco system made of component parts manufactured by K-2, that it was placed into the stream of commerce, and it was used in construction of homes.

K-2 further argued that Fresh Coat, as a contractor that obtained and installed EIFS, was not a seller. If Fresh Coat could be characterized as a service provider only, K-2 would not have a statutory requirement to indemnify. The Supreme Court held that Chapter 82′s definition of “seller” neither excludes a seller who is also a service provider nor requires the seller to sell only the product. The Court commented that its approach was consistent with the Third Restatement of Torts, which recognizes that a product seller may also provide services. As Fresh Coat provided the EIFS system and the services to install it, Fresh Coat qualified as a seller.

The Texas Supreme Court also ruled that the manufacturer’s statutory obligation to indemnify covers a settlement payment made by the contractor to the homebuilder, even where the contractor was independently obligated by contract to indemnify the homebuilder. The only exception under Civil Practices and Remedies Code Section 82.002(a)) to a manufacturer’s duty to indemnify sellers for losses arising out of a products liability action is for losses caused by the seller’s negligence, intentional conduct or other act or omission for which the seller would be independently liable. Because Fresh Coat made itself independently liable by contract, K-2 contended that it should not have to indemnify it. The Court held none of the statutory exceptions applied, leaving the manufacturer to bear the full loss.