Grunge Fight: Temple of the Dog Master Recordings Up For Grabs


If the 1990’s was the greatest decade for rock music, Seattle was its greatest destination.  The birthplace of grunge, Seattle brought us such influential bands as Nirvana, Pearl Jam, Alice in Chains, Soundgarden, Mudhoney, and Stone Temple Pilots to name a few. Without question, the Seattle sound served as the proverbial nail in the coffin of the over-the-top 1980’s hair bands that had dominated radio the previous decade. And, for this we should be thankful. For those of us here at Abnormal Use, however, we are most thankful that Seattle gave us the famed super group, Temple of the Dog.  Not just because the band was the beautiful fusion of Soundgarden and Pearl Jam, blowing the minds of grunge aficionados. But, rather, because Temple of the Dog is the subject of a new lawsuit, and thus, became perfect blawg fodder.

According to a report from the Seattle Times, A&M Records has filed a lawsuit in federal court in Seattle regarding the possession of the master recording tapes to Temple of the Dog’s self-titled – and only – album. As legend has it, Temple of the Dog was recorded at the London Bridge Studios in Seattle over 15 days in 1990.  In the suit, A&M Records claims it bought the album from the band in 1991; however, Rajan Parashar, co-founder of London Bridge Studios, won’t turn over the master tapes.

According to the lawsuit, London Bridge produced the album by way of a verbal agreement with the band. A&M Records released the album in 1991. The band subsequently played a single full convert set before parting ways. With the growing popularity of Soundgarden and Pearl Jam, A&M found itself sitting on a gold mine and re-released the album in 1992 to much greater success.  At that point, A&M alleges it memorialized a deal with London Bridge in which London Bridge agreed to turn over the master tapes.

If you are wondering why this 1991 transaction has become the subject of a 2015 lawsuit, A&M apparently only recently discovered London Bridge still had tapes.  A&M believed that the artists kept the master recordings. Upon that discovery, A&M filed suit.

As music fans, we here at Abnormal Use care not who has the legal right to the tapes. As lawyers, however, we recognize that we are expected to take a side. Nonetheless, it is difficult to do so without knowing the actual scope of any agreements between the parties. Our guess is that neither London Bridge nor A&M suspected the future significance of those tapes back in the early 1990’s. As such, it wouldn’t surprise us if London Bridge agreed to hand them over. Nor would it surprise us to learn that A&M failed to negotiate for them. What we do know is that both sides want those tapes today – some 20 years later.

Can’t Buy Me Love? Amazon Sues to Block Purchased 5 Star Reviews

As we reported on Monday, is apparently none too happy with a person or persons that runs handful of websites with names like “” that offer to give glowing reviews of sellers’  products on Amazon for a price.  We have a few more thoughts on this matter. On April 8th, Amazon filed a lawsuit against the websites’ owner or owners  in Washington state court. Amazon calls the of buying and selling of reviews an “unhealthy ecosystem” that is damaging its brand.

The complaint filed in King County Superior Court names an individual named Jay Gentile as the operator of  Amazon also asserted claims against a John Doe defendant since it does not know who is operating, and Amazon wants the court to shut the websites down for trademark infringement, unfair competition and violation of the Consumer Protection Act.  The complaint also seeks an injunction to stoping  the selling fake reviews and an order requiring the sites to identify each Amazon review created in exchange for payment.

Amazon expressly prohibits paid reviews and threatens to suspend sellers that buy fake reviews. According to the complaint:

[the] Defendants are misleading Amazon’s customers and tarnishing Amazon’s brand for their own profit and the profit of a handful of dishonest sellers and manufacturers…Amazon is bringing this action to protect its customers from this misconduct, by stopping Defendants and disrupting the marketplace in which they participate.”

Although there’s no way of knowing which products have reviews that may have been purchased form one of these website.  However, this review seems to be a very likely candidate as it appears to have been written by J. Peterman.

$500,000 Judgment In Barking Dog Suit Is Not What It Seems

Family could lose house over $500,000 barking dog lawsuit.”  That’s certainly an attention grabbing headline. A $500,000 judgment over a barking dog? What jury went off the rails with this one?  Actually, no jury at all.  A Seattle man obtained a $500,000 default judgment against his neighbor after she failed to answer the complaint that he filed against her in state court.

The lawsuit itself really is about about a barking dog. In his 36 page complaint, the plaintiff alleged that the defendant’s dog was responsible for “raucously, wildly bellowing, howling and explosively barking.” He claims that the dog barked so loudly that it could be measured at 128 decibels . . . through double-paned windows!  How loud is 128 decibels? About as loud as a jet engine.  Plaintiff claims that all of this barking caused him “profound emotional distress.”

A frivolous lawsuit has no friend like a lazy defendant. But $500,000 for emotional distress from dog barking?  We’re no experts in Washington civil procedure, but like most states, its rules do call for a judicial inquiry to verify the damages in cases like this one. The rules provide:

When Amount Uncertain. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as are deemed necessary or, when required by statute, shall have such matters resolved by a jury. Findings of fact and conclusions of law are required under this subsection.

Wash. Super. Ct. Civ. R. 55.

So it would appear that some judge looked at this case and determined that $500,000 was a plausible amount of damages.  That’s probably the real story here.  The defendant now faces an uphill battle in attempted to get the judgment vacated.

Amazon Sued By FTC Over Unauthorized In-App Purchases

We have previously reported on Apple’s legal troubles over its mobile operating systems allegedly allowing unauthorized in-app purchases by minors.  Now is facing similar legal problems stemming from charges incurred by minors while using “apps” and playing games.  The interesting catch in the case of Amazon is the the suit was not brought by angry parents but by the Federal Trade Commission. In its lawsuit (which it brought in federal court in Washington), the FTC alleges that Amazon unlawfully billed parents for the children’s in-app purchases worth millions of dollars.  These unlawful billings allegedly occurred because the set-up on Amazon’s mobile devices allowed game playing children to spend unlimited amounts of money to pay for virtual items within the apps such as “coins” or “stars.”  Initially, no password was required in order for the children to make in-app purchases.  In early 2012, Amazon updated its system to require an account owner – presumably, an adult – to enter a password only for individual in-app charges. However, a password was only required for charges over $20.  Amazon updated its system once again in early 2013 to require a password for all such purchases. However, Amazon allegedly failed to disclose that such an authorization could open a window of up to 60 minutes during which unlimited charges could be occur without further authorization. The FTC’s lawsuit is brought under the FTC Act.  Section 5(a) of the FTC Act, 15 U.S.C. § 45, prohibits “unfair or deceptive acts or practices in or affecting commerce.”  According to the FTC’s complaint:

In numerous instances, Defendant has billed parents and other Amazon account holders for children’s activities in apps that are likely to be used by children without having obtained the account holders’ express informed consent. [This] constitute[s] unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

Regardless of the outcome of the lawsuit, this litigation risks a big PR hit for Amazon, a corporation which has always a prided itself on a “customer comes first” culture.  However, the allegations contained in this lawsuit doesn’t paint the company in the best light. We wonder at this point how the publicity may affect Amazon’s litigation strategy.  The complaint alleges that the Appstore manager described this situation as a “near house on fire” situation in 2011, yet it didn’t fully require parental consent for purchases until 2014.

The lawsuit is Federal Trade Commission v. Amazon.Com, Inc., No. 2:14-CV-01038 (W.D. Wash.).

Juror’s Facebook Comments “Not Prejudicial” To Defendant in Washington Med Mal Action

Another trial, another juror posting comments about same on Facebook.

This time, it’s Figueroa v. High Line Medical Center, No. 68272-5-I (Wash. Ct. App. Oct. 14, 2013), a medical malpractice case (the basic facts of which are not important to the Facebook issue). Whatever the facts, the jury found for the plaintiff, and the doctor appealed on a number of issues.

One of his points of error was jury misconduct.  The relevant portion of the opinion reads:

Dr. Ryan argues that the court erred in not granting a new trial because of alleged juror and attorney misconduct. Dr. Ryan further argues that the trial court abused its discretion when it denied his motion for a new trial after a juror posted comments regarding the case on Facebook. A juror’s communication with a third party about a case constitutes misconduct.The trial court may grant a new trial only where such juror misconduct has prejudiced the defendant.

Here, no such prejudice was shown. The juror’s comments were limited and innocuous. They were nothing more than a description of the juror’s day interspersed with the following related comments on her jury duty:

• Spent the day in Superior Court doing my civic duty. On jury duty for next 2 weeks.

• Day 3 of jury duty. Very difficult to listen to a translator during the questioning. I can pick out some words.

• Day 4 of jury duty, off on Friday, and back to the jury on Monday. Hope to finish by noon on Thursday. It’s been interesting. Love the 1 1/2 hour lunches.

• My civic duty, jury duty ended today with a negligent claim on the doctor. This was tough to decided $s to the plaintiffs. Mentally exhausting!

While it was inappropriate for the juror to post anything on Facebook regarding the case, these comments were not prejudicial to Dr. Ryan.

(Citations and quotations omitted).

Sure, the status updates were probably harmless, and his only substantive remark referred to the verdict itself, after it had been rendered. However, it seems that the jury’s conduct was almost certainly violative of whatever instructions the judge may have given to the jurors prior to the institution of the trial. Oh, well.

Loogie on a Burger: What’s the Harm?

Clark County (WA) Deputy Sheriff Edward Bylsma had an “uneasy” feeling after ordering a Whopper from a Burger King drive-thru. After lifting the bun from the burger, his suspicions were confirmed. As if living an urban legend, he allegedly discovered a large glob of spit on his burger. Fortunately, Bylsma had yet to take a bite out of the burger. Nonetheless, he claims that he now suffers ongoing emotional distress, including vomiting, nausea, food aversion and sleeplessness. After his subsequent lawsuit was appealed to the Ninth Circuit,  the Washington Supreme Court was faced with the certified question of whether emotional distress absent physical injury is recoverable under the state’s product liability statutes. See Bylsma v. Burger King Corp., No. 86912-0 (Wa. Jan 31, 2013)

The Model Uniform Product Liability Act (UPLA) includes mental anguish within its definition of the “harm” necessary to maintain a product liability cause of action so long as it is accompanied by some physical manifestation. Washington’s Product Liability Act (WPLA) chose not to adopt the definition but, rather, to follow trends in developing case law. Without any guidance from the WPLA, the Court turned to precedent involving emotional distress from other torts. As it turns out, Washington has permitted recovery in the absence of physical injury in situations involving emotionally laden personal interests such as the improper burial of an infant child. Like these cases, the Court concluded that food consumption is a personal matter and its contamination is associated with disgust and emotional turmoil. As such, emotional distress arising out of food contamination is recoverable under Washington law.

Now that the question is answered, it will be interesting to see how Bylsma’s suit develops. If his case is remanded back to the trial court, he still must prove his emotional distress. Despite the recent “victory,” proving injury may nonetheless be difficult given the fact he did not actually consume the contaminated product. Admittedly, we too would be disgusted to discover that someone had spit on our burger, but it’s not like the resulting fear would be anything new. Isn’t the risk of food loogies an assumed risk of eating fast food? In addition, Bylsma’s newfound aversion to fast food may not be a “damage” at all.

The point of the physical injury requirement is to temper fraudulent emotional distress claims. Emotional distress is completely subjective and very difficult to evaluate. While the Washington Supreme Court’s decision appears to be limited to the food context, it will be interesting to see how many purchasers, but not users, of defective products try to test its bounds.

Of course, what’s the harm in trying?

The Hazards of Molten Glass May Not Be Obvious in Washington

Recently, in Kirkland v. Emhart Glass S.A.,  — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”).  The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.”  The manufacturer’s defense?  The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious.  Sounds reasonable.  After all, in order for glass to be “molten,” it must be exceedingly hot.  We doubt the plaintiff was wearing his winter coat while operating the machine.

However, the Court wasn’t buying it.

Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator

[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)

See what they did there?  They incorporated the open and obvious nature of the molten glass right into their argument.  I’ll take your “open and obvious” and raise you one “failure to provide instructions.”  The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy.  To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident.  (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).

The manufacturer was right.  The dangers of molten glass are open and obvious.  However, sometimes being right just isn’t enough.

A Rose by Any Other Name: The Economic Loss Rule and the Independent Duty Doctrine

There has been a lot of buzz about the recent Washington Supreme Court decision in Eastwood v. Horse Harbor Foundation, Inc., 241 P.3d 1256 (Wash. 2010) concerning the economic loss rule. Or, rather, what used to be the economic loss rule in the State of Washington, and which has now been re-named and re-vamped as the independent duty doctrine.

As we all know, the economic loss rule bars recovery in tort for purely economic losses caused by a defective product. In other words, without injury to a person or to personal property, there can be no recovery for pecuniary loss. Several jurisdictions, of which Washington used to be one, subscribe to a more liberal interpretation, finding that the rule barred liability in tort cases between parties who had entered into a contract. The theory behind this expansive approach is that the parties could have built the risk of the loss into the contract. That was approach taken by the Washington Supreme Court previously in Alejandre v. Bull, 153 P.3d 864 (Wash. 2007).

Enter Eastwood, which involved the failure of a tenant to maintain a horse farm and centered on the tortious waste of property. Instead of following their own lead, the Washington Supreme Court performed the legal equivalent of a 180 and renamed the doctrine the “independent duty doctrine,” which now focuses on whether some separate duty of care exists independent of the parties’ contractual relationship, rather than focusing on the harm that was suffered:
In sum, the economic loss rule does not bar recovery in tort when the defendant’s alleged misconduct implicates a tort duty that arises independently of the terms of the contract. In some circumstances, a plaintiff’s alleged harm is nothing more than a contractual breach or a difference in the profits, revenue, or costs that the plaintiff had expected from a business enterprise. In other circumstances, however, the harm is simultaneously the result of the defendant breaching an independent and concurrent tort duty. Thus, while the harm can be described as an economic loss, it is more than that: it is an injury remediable in tort. The test is not simply whether an injury is an economic loss arising from a breach of contract, but rather whether the injury is traceable also to a breach of a tort law duty of care arising independently of the contract. The court defines the duty of care and the risks of harm falling within the duty’s scope.

Opinions about the implications of the new rule run the gamut, including speculation whether it is a new rule at all, or simply a narrowing of the interpretation of the economic loss rule. Indeed, the Eastwood court itself, in a footnote, argued that it was not disturbing “[t]he general rule . . . that a party to a contract can limit liability for damages resulting from negligence.” There is also a difference of opinion as to whether the new approach in Washington is a more, or less, fact-intensive inquiry for a court to undertake.

The real question is, given the wide range of interpretations of the economic loss rule across the country, how many courts will follow Eastwood? Will other states continue to narrow the interpretation? For that matter, how many other states will rename the doctrine something else entirely? Furthermore, will this have any immediate effect on the way parties build risk into their contracts and agreements? At least in Washington, that might be a good idea.

No Duty To Warn Of The Hazards of Cleaning Hazard-Protecting Equipment

This past December, the Court of Appeals of Washington reversed a trial court’s denial of several respirator manufacturers’ motion for summary judgment on plaintiff’s claim that they failed to warn him of the dangers of asbestos exposure while cleaning respirators designed to protect against asbestos. Macias v. Mine Safety Appliances Co., 244 P.3d 978 (Wash. Ct. App. 2010).
Mine Safety Appliances Company, American Optical Corporation, and North Safety Products USA (collectively “respirator manufacturers”) manufactured respirators that could protect against a variety of contaminants dependent upon the contaminant-specific filter cartridge selected by the user. The plaintiff worked as a tool keeper at a Seattle shipyard, and as part of his duties, he was responsible for cleaning respirators after they were returned by shipyard workers at the end of their shifts. After working in the shipyard for over twenty-five years and handling hundreds of dirty respirators on a daily basis, the plaintiff was diagnosed with mesothelioma and commenced this action against the respirator manufacturers.

The plaintiff alleged that the manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure. In response, the respirator manufacturers argued that they had no duty to warn of the dangers associated with asbestos in another company’s product. In support of their argument, the manufacturers cited the Washington Supreme Court’s decision in Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), holding that the duty to warn is “limited to those in the chain of distribution of the hazardous product.”

The Court agreed with the respirator manufacturers and held that they did not have a duty to warn, neither under a negligence or strict liability theory, because the manufacturers did not manufacture, sell, or supply the asbestos and did not control the type of contaminants used at the shipyard. While the plaintiff argued that the court should consider the purpose of the product in its duty to warn analysis, the Court rejected the notion that a product manufacturer should have a duty to warn of the dangers of a hazardous substance when its product is designed for the purpose of protecting against those very hazards.

Even though the manufacturers should have expected, as pointed out in the concurring opinion, that those who perform the necessary cleaning of the respirators would be exposed to the hazardous substances which had been absorbed, the plaintiff should have also expected that he would have been exposed to asbestos as he was cleaning the respirators of the substance against which it was designed to protect. Manufacturers should not be expected to warn against every conceivable hazard created by others’ products especially when the purpose of the manufactured product is to protect against those hazards.

While we here at Abnormal Use have been known to venture into the outdoors with the UV-protection afforded by a decent pair of polarized sunglasses, we wouldn’t expect Costa Del Mar to warn us of the dangers of the sun exposure we undoubtedly will receive to the rest of our faces when we neglect to wear sun screen. Even though this opinion did not expressly create a duty on behalf of the consumer, consumers must recognize that there comes a point with the use of any product at which the manufacturer’s duty to warn must end and the user’s common sense must take over.

Smells Like Lung Disease

Fate, it seems, is not without a sense of irony. In his bid to quit smoking and improve his health, Larry Newkirk began eating microwave popcorn to suppress his appetite. What Mr. Newkirk could not have known, while on his course to eating five to seven bags of microwave popcorn each day for eleven years, was that the delectable treat (allegedly) caused his severe lung disease, bronchiolitis obliterans. We reported earlier on a recently filed case involving allegations that Diacetyl‘s “characteristic buttery odor” smelled more like lung disease than popcorn flavoring, but the Eastern District of Washington in Newkirk v. Conagra Foods, Inc., No. CV-08-273, 2010 WL 2680184 (E.D. Wash. July 2, 2010) has had a chance to examine the issue. It issued some Defendant-friendly rulings on a few motions on Daubert as well as summary judgment.

A large part of the opinion focuses on the expert testimony of Dr. David Egilman, the plaintiff’s expert, who is board certified in Occupational and Internal Medicine. Holding degrees from Brown and Harvard, Dr. Egilman is certainly no intellectual lightweight. Mr. Newkirk put forth Dr. Egilman to establish general causation and specific causation. The court excluded Dr. Egilman’s testimony and ultimately granted summary judgment.

Unfortunately for Mr. Newkirk, there was no scientific foundation for Dr. Egilman’s opinions, and, neither does it appear that there will be any scientific foundation, because “manufacturers of microwave popcorn stopped using diacetyl in or around 2007.” Previously, there had been some research on the employees in microwave popcorn plant, and that research tracked the employees according to their particular job function. In addition, there was an EPA study released in 2007 studying the chemicals released when a bag of microwave popcorn is opened. But the “scientific community has yet to determine a safe level of diacetyl exposure.” Dr. Egilman made leaps in logic, equating the diacetyl exposure of a manufacturing worker (those who worked around the large vats of flavoring tantalizingly called slurry) to the purported exposure of a consumer opening a bag of popcorn in the home.
However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.

Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”

Unlike some plaintiffs, Mr. Newkirk has an actual injury. Unfortunately for him, there is no science supporting his allegation of the causation of his injury. We applaud the District Court for demanding science, and, seeing none, dismissing this case.