Friday Links

We greatly enjoyed the opportunity to engage in a bit of a hoax with yesterday’s April Fool’s Day post about a fake verdict from a non-existent Texas court arising from the consumption of an unsatisfactory Snickers bar. Surely you were tipped off by the “reasonable degree of confectionary certainty” standard and the “nougat defense.” Thanks to all those who linked the post, and for those of you who wrote in asking for a copy of the opinion, we won’t tell. In sum, we haven’t had this much fun since our chicken sandwich post (which, actually, was about a real court opinion).

Andrew Giuliani, son of former New York City mayor Rudy Giuliani, apparently sued Duke University over his being removed from the school’s golf team. This, he argued was some type of breach of agreement which deprived him both of team membership but also life time use of the school’s golfing facilities. This week, however, a federal district judge dismissed his lawsuit. Really, with this one, you just need to come up with your own golf pun. We’re fresh out. (See additional coverage of this opinion here at the Findlaw Courtside blog, here from the WSJ Law Blog, and here at Overlawyered.).

Over at the South Carolina Women Lawyers Association’s Blog: The Briefcase blog, you can find a post entitled “Eight Simple Ways to Lose Your Law License by Email.” The article, written by Barbara M. Seymour of the South Carolina Office of Disciplinary Counsel, concludes with a series of email usage tips for attorneys.

Richard Goldfarb at the Food Liability Law Blog offers his preliminary thoughts on the food labeling provisions of the new health care bill.

Sara Turner at DRI’s For the Defense blog comments upon speculation that Apple’s new iPad may be “the hot new technology for trial.” The associates writing this blog will need to forward that link to the shareholders in the procurement department. After all, how can one not have the latest in trial technology?

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds

We here at Abnormal Use are puzzled and alarmed at a very recent opinion by the Fifteenth Court of Appeals in Texas, which was released this very morning and quickly forwarded to our inbox by a reader in Anarene, Texas. In that case, the Court of Appeals affirmed a ruling by the trial court, which had permitted an expert to opine that a candy bar consumed by the Plaintiff was not, in fact, satisfactory, and was therefore, unreasonably dangerous and defective. This opinion’s rationale, if adopted elsewhere, has the potential to convert untasty sweets into causes of action to be wielded against unsuspecting candy manufacturers.

The case at issue is Arthur Slugworth v. Mars, Inc., — S.W.3d —, No. 10-48-15162342 (Tex. App. – Corsicana, April 1, 2010, no pet. h.). Slugworth, the Plaintiff, purchased a Snickers bar at a retail store in Texas after a harrowing road trip. He bit into the candy and later testified that he was “rather alarmed that the Snickers bar did not, as promised by advertisements, satisfy me.” As a result of the ingestion of the allegedly unsatisfactory candy bar, Plaintiff suffered extended bouts of melancholy, coupled with an occasional conflagration of ennui. He brought suit in state court under various theories of recovery, including strict products liability, intentional infliction of emotional distress, alienation of affection, and the offensive use of laches. The Plaintiff offered the expert testimony of one Violet Beauregarde, a candy expert, while the defense invoked “the nougat defense,” based on the old English common law rule that products containing a certain combination of sugar, honey, and hazelnuts cannot be subject to strict liability claims.

The jury found the candy bar to be unreasonably dangerous and defective and awarded the Plaintiff $2.13 million dollars in actual damages and twice that amount in punitives. The verdict was largely based on the testimony of Beauregarde, who opined that to a reasonable degree of confectionery certainty, the candy bar at issue was “yucky.” Mars, for its part, appealed the verdict, arguing the trial court erred by qualifying Beauregarde as an expert under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), in which Texas adopted its own version of Daubert.

The appellate court rejected Mars’ first point of error that Beauregarde was not sufficiently credentialed to testify as an expert. Although Mars sought to exclude her based on her only having attended Greendale Community College and not some august scientific institution, the court noted that experience in the field was as important as a degree. In so doing, the court pointed to Beauregarde’s testimony that she had “consumed, and enjoyed, candy for many years, as far back as her childhood, and had never had an unpleasant experience with sweets.”

The court also dismissed Mars’ second point of error, in which it argued that Beauregarde’s testimony was unreliable. Beauregarde, Mars argued, had not tasted the particular candy bar at issue but had instead sampled an exemplar bar. Further, Mars pointed to the fact that Beauregarde cited to no peer-reviewed articles or epidemiological studies which established that a Snickers bar was incapable of satisfying a consumer. However, despite these arguments, the court found Beauregarde had indeed satisfied the reliability criteria.

The trial court had also thwarted Mars’ attempt at impeachment of Beauregarde over a past indiscretion involving carob, but the appellate court found Mars had waived that issue.

Watchdog groups in Texas are closely watching this case as it makes its way to the Texas Supreme Court, which in the past has offered some conflicting jurisprudence in this area, including Wonka v. Wonka, 472 S.W.3d 1012 (Tex. 2008) and In re: Bertie Bott’s Every Flavour Beans, 388 S.W.3d 999 (Tex. 2006). What happens next, no one can predict.

Joseph Throckmorton, outside counsel for the candy manufacturer, sighed when reached on his cell phone early this morning for a comment. He indicated that he has no further plans to engage in confectionary cases and now plans to dedicate his practice to the Soylent Green litigation, in which it is alleged that the foodstuff at issue contains certain undisclosed ingredients.