Friday Links

Behold, the cover of Archie #618, published not so long ago in 2011. Note that Archie, somehow transplanted back in history to the days of Robin Hood and Sherwood Forest, is now “Robbing Arch” and a wanted criminal to boot. Here’s our question: The wanted poster is affixed to a tree, and the only thing holding it to the tree is an arrow, which must have been shot at a distance. Who was the guy who was holding the poster to the tree waiting for the arrow to be shot into it? Wouldn’t a hammer and nail have been far, far easier?

Apparently the U.S. Supreme Court released some big opinion yesterday. Here it is, if you haven’t read it yet.

Music writer Caryn Rose of the Jukebox Graduate blog and the Backstreets magazine reflects on the one year anniversary of the death of Clarence Clemons, famed saxophone player for Bruce Springsteen’s E Street Band.  Our own obituary, published in June 2011, can be found here.

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The Perils of the DSM-V?

Quite some time ago, friend of the blog Walter Olson of Overlawered opined on the proposed revisions to the DSM-IV, soon to be the DSM-5, which will apparently include some brand new mental disorders therein.  (He also tweeted a link to a related news report). The DSM, of course, is the The Diagnostic and Statistical Manual of Mental Disorders, a thick volume published by the American Psychiatric Association which purports to list (and include the elements of) a host of mental disorders.  Daily, it is used by practitioners – from psychiatrists to primary care physicians – to diagnose particular mental conditions, from potential tobacco addiction to post traumatic stress disorder. It’s often called “the Bible of the profession.” Predictably, Plaintiffs’ experts often use the mighty tome – haphazardly, more likely than not – to advance their clients’ cases.

Olson linked to a piece he wrote for the Cato Institute, in which he speculates that the liberalization of standards for preexisting mental disorders and the addition of new disorders – such as Internet Addiction Disorder and Mild Neurocognitive Disorder – will result in a flurry of new claims for benefits, discrimination, and such.  Certainly, plaintiffs’ retained testifying experts – and local treating physicians and mental health providers advocating for their patients in personal injury lawsuits – may seize upon these new diagnoses.  However, many of these experts and plaintiff friendly treaters do not actually employ the formal DSM criteria when making these diagnoses in the first place.  Whatever you say about the merits or lack thereof of the DSM-IV, many plaintiffs’ experts and treaters shoot from the hip when making these mental diagnoses.  When they see a patient claiming psychological symptoms following a traumatic incident, they immediately leap to a PTSD diagnosis without employing the specific multi-axial diagnosis process.  Further, when called upon to analyze the factors set forth in Axis IV, which requires an analysis of  – or at the every least, knowledge and consideration of – other environmental or psychosocial factors contributing to the patient’s condition, these providers almost never conduct any independent evaluation.

The DSM-IV-TR provides that the mental health professional consider a number of factors when performing a multi-axial diagnosis, including such things as the following:

  • Source of psychosocial and environmental problems interview with patient and parents?
  • Positive stressors
  • Problems with primary support group?
    • Death of a family member
    • Health problems in the family
    • Disruption of family by separation
    • Divorce or estrangement
    • Removal from the home
  • Problems related to social environment
    • Death or loss of a friend
    • Living alone
    • Difficulty with acculturation
    • Adjustment to life transition (such as retirement)
    • Adjustment to life-cycle transition
  • Occupational Problems?
    • Unemployment
    • Threat of job loss
    • Stressful work schedule
    • Difficult work conditions
    • Job dissatisfaction
    • Job Change
    • Discord with boss or co-workers?
  • Economic Problems?
    • Extreme poverty
    • Inadequate finances
    • Insufficient welfare support
  • Housing Problems?
    • Homelessness
    • Inadequate housing
    • Unsafe neighborhood
    • Discord with neighbors or landlord
  • Problems with access to health care services?
  • Problems with primary support group
  • Problems related to interaction with legal system/crime
    • Litigation
    • Arrest or incarceration or victim of crime?
  • Other psychosocial and environmental problems?

Yet, in the rush to reach a diagnosis, the professional often fails to consider many of these as alternatives to the event being litigation.  (Also neglected is secondary gain syndrome, an ailment which Plaintiff’s retained testifying experts never seem to diagnose.). Thus, we can always rely on plaintiff’s testifying experts to fail to do what the DSM instructs.  This can be helpful when cross examining or deposing these experts before trial.  Even plaintiff friendly treaters, in their attempts to get one patient out the door so the next one can come in, do not traditionally take all of the steps suggested by the DSM-IV or analyze the factors of a full multi-axial diagnosis. So, as with any list, people skip steps, particularly when they feel they can. In this setting, defense counsel can sometimes actually benefit from the extraordinary detail of the publication by highlighting all of the portions of the guidelines that the expert failed to consider or make a part of his or her analysis.

So, even when the DSM-5 arrives, we can still count on these individuals to take short cuts. (Although we’re a bit concerned about this “Internet Addiction Disorder.”  Might we here have that?).

(Hat tip also to these two tweets from Jay Hornack a/k/a Panic Street Lawyer: here and here).

The Flaming Rat Case: A Revisionist Analysis

Out of the thousands of cases I read in law school, I’m embarrassed to say there’s really only one I can remember: “The Flaming Rat Case,” otherwise known as United Novelty Co. v. Daniels, 42 So.2d 395 (Miss. 1949), from first-year Torts. Daniels was an action for wrongful death brought by the personal representative of a machinist who worked at a manufacturing facility. Among other things, the employee was responsible for cleaning machinery, and his preferred cleaning agent seems to have been gasoline. On the day of his death, the hero of our story went into a small, 8×10 foot room to clean a piece of machinery. As it turned out, in the same room, there was a gas-powered heater fed by a pilot light. What happened next was presumably an explosion of Wile E. Coyote proportions.

So why is this called the Flaming Rat Case? We have plaintiff’s counsel to thank for that. The theory at trial seemed to be that the explosion was caused by a rat who lived under the piece of machinery being cleaned. As the machinery was being soaked in gas, so too was the rat. When the rat had finally had enough, it scampered out of its home to vacation in a drier climate, a/k/a by the pilot light. Then the rat caught on fire. Scared out of its ever-loving mind, the rat immediately ran back to its home under the gas-soaked piece of machinery. Then . . . KABOOM.

At trial, the jury found for the plaintiff and held his employer liable for wrongful death. The company appealed, obviously on the grounds of “You’ve got to be kidding me.” In what universe is it reasonably foreseeable that a rat would get soaked by gas, find an open flame, and become a suicide bomber? However, the verdict was upheld by the Mississippi Supreme Court.

In law school, this case is presented as an illustration of the expansive concept of foreseeability. Oh, sure, no one could have foreseen the flaming rat, but it was foreseeable that using gasoline around an open flame could have caused an explosion. Therefore, even if the specific cause of injury wasn’t foreseeable, the general cause was. Or, at least, so the proposition was explained in school.

Well, faithful readers, today I’m going to propose an alternative reading to the Flaming Rat Case. One that doesn’t seem so contrived.

Although I think the Mississippi Supreme Court was amused by the flaming rat theory, I don’t think they bought it. First of all, there’s a proof issue here. Let’s cast a critical eye on the facts. The lawsuit resulted from a gas explosion in an enclosed space. Who was the witness? Anyone who would have seen the flaming rat would almost certainly have perished in the explosion. Notably, while the opinion discusses witness testimony, it does not mention anyone who could substantiate the flaming rat theory. More importantly, the court explicitly stated that the rat facts were inconsequential to its decision.

So why did the court affirm the plaintiff’s verdict? The court seems to have done so by referring to other theories of liability that could be established from the record. Those other theories are what we would now call “negligent training” and “negligent supervision.” The court’s opinion stated in no uncertain terms that the manufacturing company had a duty to warn its employees not to use gas around open flames. There was no evidence that the deceased employee had been warned. The court also held that, even if the employee had been warned, the company had a duty to enforce its policy against using gas around open flames. There was also no evidence of that. Because the breaches of these duties caused the employee’s death, it was appropriate for the company to be held liable. That seems like an open-and-shut case, and much more intellectually satisfying than making employers responsible for acts of God. Or Splinter.

I love the Flaming Rat Case. Always have; always will.

But now, after this revisionist analysis, I kinda feel like the Grinch who stole his own Christmas.

WARNING: Don’t let your kid eat dog food.

There’s certainly nothing out of the ordinary about a contaminated food lawsuit.  Unless the food in question is dog food.  That’s exactly what went down May 25 when a New Jersey father filed suit against Diamond Pet Foods in federal court claiming his two month old infant was sickened by salmonella-contaminated dog food.  This lawsuit comes on the heels of Diamond’s May 5 pet food recall due to salmonella contamination. The lawsuit alleges that the dog food, manufactured by Diamond, infected the infant with a rare strain of salmonella infantis.  That’s the same  strain identified in another outbreak allegedly caused by Diamond’s contaminated pet food.  That instance is claimed to have sickened 15 people in 9 states.

One key question left unaddressed by the complaint is how the child was exposed to the allegedly contaminated dog food.  We can safely assume, since the child was only two months old, that he did not ingest the food on his own.  It would appear that the most likely culprit was a parent failing to wash his or her hands after handling the dog food.  As Diamond’s recall notice says, people can become infected with salmonella by handling contaminated food “especially if they have not thoroughly washed their hands after having contact with surfaces exposed to this product.”

Another key issue in this case is whether the Diamond pet food purchased by the plaintiff was even contaminated with salmonella.  Samples of the dog food purchased by the family were sent to a Monmouth County laboratory for analysis but did not test positive for salmonella.  The plaintiffs’ attorney has suggested that the contamination could have come from an earlier batch of Diamond dog food purchased by the plaintiffs.  However, the plaintiffs were supposedly buying Diamond’s dog food for months and neither of their two dogs became ill.

It should be interesting to see if the plaintiffs are able to convince a jury that there is causal connection between the illness and the dog food.  Either way, you know a pet food company is having a rough go of things when they are getting sued for making a human sick.

Abnormal Interviews: Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund, which bills itself as “a non-profit organization dedicated to the protection of the First Amendment rights of the comics art form and its community of retailers, creators, publishers, librarians, and readers.” In so doing, it “provides legal referrals, representation, advice, assistance, and education in furtherance of these goals.”  Sounds like the perfect candidate for an interview by comic-loving legal bloggers, right? Brownstein was kind enough to submit to a brief interview about the Fund and, of course, legal comics. So, without further ado, the interview is as follows:

Nick Farr: Can you begin by telling our readers a little bit about the Comic Book Legal Defense Fund?

Charles Brownstein: Sure. The Comic Book Legal Defense Fund was established in 1986 to protect the First Amendment rights of the comic book art forum.  Ever since then, we’ve participated in dozens of cases providing legal support and paying for legal bills pertaining to cases involving retailers, artists and increasingly readers who are being criminally prosecuted in connection with exercising their First Amendment rights.

NF:  How does the Fund decide what cases to take?

CB:  The way our case selection process works is that people come to us with an aid need, and we present that need to our Board of Directors, who then will vote on the case, whether we can take it or not. The guiding principle is always whether the material – whether the case at issue is a First Amendment-based case where the comic is either being prosecuted as a result of sale or prosecuted as a result of being read or created are protected and that this is a case where the First Amendment is being violated.

NF: What percentage of the cases are criminal versus civil?

CB:  I don’t have an exact percent breakdown, but the majority of our work is criminal oriented.  We have done some civil defense from time to time in incidents where an artist might be civilly prosecuted by an organization that is alleging that their parody work is infringement or dilution of their rights, but those cases are fairly rare.  The majority of the work that we get and the majority of the work that’s coming in frankly tends to be criminal in nature.

NF:  Can you tell us about some of the successes of the Fund?

CB:  Absolutely.  Most recently, the Fund was leading a coalition to defend an American citizen who was being unlawfully prosecuted in Canada. When I say unlawfully, there were excesses in the arrest, and he was being prosecuted under the allegation of possession of obscene child pornography for possession of constitutionally protected comics.  And thanks to our efforts in developing a very strong defense, Canada dropped the charges against this American citizen.  That case is R. v. Matheson.  The defendant, Mr. Ryan Matheson, is a comic reader from Minnesota. This is part of a growing generation of cases involving governments in Canada and the United States prosecuting individuals for the contents of the comics that they’re reading. As we speak, there’s a case that is pending here in the states that I can’t really speak in detail about involving an American citizen prosecuted by our law enforcement here.  So that is a very concerning area because we’re seeing these laws that are designed to protect real people being misapplied to the consumers of constitutionally protected art work.  Other successes of the Fund we’ve managed over our history are a variety of cases where we’ve successfully defended retailers who were being prosecuted by local law enforcement for selling constitutionally protected material and the most recent of those is Georgia v. Gordon Lee, which was a case in Rome, Georgia, where a retailer was wrongly prosecuted for allegedly distributing harmful materials to minors.  It took three years and several shenanigans on behalf of the prosecutor where they threw out the facts and then refilled the facts and changed their story several times, but at the end of it we were able to successfully defend Mr. Lee who had not performed the crime that they accused him of. Most importantly, we were able to make sure that constitutionally protected material didn’t suffer a setback in court.

NF:  What are some of the most egregious cases that you’ve seen through the years?

CB:  Probably the – the most disconcerting case is one that happened pretty early in the Fund’s development which was Florida v. Mike Diana.  This is a case involving a comic book artist in Florida who was ultimately prohibited from drawing in his own home.  Mike Diana was a cartoonist that was creating comics for distribution through local stores and through the mail back in the time when there were networks of underground trading going on. He was first pulled aside by local law enforcement that found his physical description matched a suspect they were looking for in a murder investigation. When they realized that he was not the person they were looking for but had looked through his comics and were disturbed by them, they created a sting operation where one of the police officers engaged in a correspondence with Mike and ultimately purchased his comics through the mail.  In doing so, that gave them the warrant to arrest him and he was prosecuted for creation and distribution of obscene material.  Now, Mike’s comics are from a tradition of underground comics that were speaking of – speaking satirically in a kind of outsider art visual idiom about some of the more egregious social issues of the day.  So his comics were black satire about religion and about sexual abuse and about many of the evils that were plaguing society, and he was applying an underground cartoonist editorial point of view to it. Unfortunately, in his case being brought before a jury in Florida, the jury just did not find that there was artistic merit and Mike was ultimately convicted. Despite the efforts of the Comic Book Legal Defense Fund and the efforts of the ACLU on the appeal, that conviction was upheld.  And so, yes, most egregiously an American citizen was told that they were unable to draw in their own home.

NF:  Once you get word of a case, do you work with local counsel or does the Fund handle the representation?

CB:   The CBLDF has – our outside general counsel is Bob Corn Revere of Davis, Wright, Tremaine who’s an extremely experienced First Amendment litigator and who manages the case work that comes in.  By that we mean that Bob will identify the case, make recommendations for the Board and then if we take the case, we’ll locate local counsel that is best equipped to wage the case.  And then we work in a very hands-on capacity with that counsel, supervising how the work’s being done and providing them with access to our network of experts to manage the case.

NF:  At Abnormal Use, we write a good deal about the depictions of lawyers and the legal system in comics.  Do you have a personal favorite depiction of lawyers or the legal system in a comic?

CB:   It’ll take a minute to think about.  I hadn’t anticipated that. Batton Lash at Wolff and Byrd, Counselors of the Macabre is always an amusing look at lawyers and an amusing look at a variety of classic comics genres. I think that’s is his website.  And it’s hard to argue with Matt Murdock, right?

NF:   Do you have any opinions on the most egregious depiction of lawyers in comics?

CB:   You know, lawyers are kinda set dressing in comics.  There really has never been a good literary or thriller depiction of lawyers or law, really.  We’re really good at depicting fantasies about law enforcement, but we’re not so good about the other side of the law.

NF:  In closing, is there anything in particular that you’d want our readers to know about the Fund that they would not have known beforehand?

CB:  I think – right now we’re in the middle of an extremely disconcerting trend where readers are finding themselves vulnerable to prosecution for the contents of the art that they read. As we move into a more robust visual communications environment, this problem becomes much more serious. So the Fund is actively working to participate with folks in doing local CLE sorts of seminars where we talk about the history of our casework, and we talk about the current realm of cases.  Because we feel that it’s extremely important that more individuals know their rights and it’s extremely important that more folks in the legal system or in the legal community are connected with this area of casework that’s emerging.  So I strongly encourage the readers if they’re interested in helping us spread the word about these generations of cases and helping us spread the word about getting these rights into the readership community to please contact us at because that’s an increasingly important area. Ultimately, nobody should ever go to jail for reading comic books, making comic books, or selling comic books, and as the fight changes, so do we to stay on top of everything.

BIOGRAPHY: Charles Brownstein is the Executive Director of the Comic Book Legal Defense Fund. Prior to working with the Fund, he served as Programming Director for Comic-Con International in 1998 and 1999, where he developed and managed the panels and special events for Comic-Con. Brownstein is also the publisher of the award-winning interview book Eisner/Miller, and the Eisner and Harvey nominated monograph The Oddly Compelling Art of Denis Kitchen. You follow Brownstein on Twitter here.

Friday Links

Behold, the cover of Showcase #96, published by DC Comics way, way back in 1978.  This issue of the series focused on the Doom Patrol, one of whom’s members, Negative Woman a/k/a Valentina Vostock, faces arrest on the cover. “Your team can call it quits, Robotman . . . Valentina Vostock is under arrest,” proclaims someone who must be a state actor of some sort. Now, Ms. Vostock was a Soviet defector, so maybe there is some late 1970’s Cold War era politics going on here, but this is still more than a decade after Miranda. You’d think Robotman could at least raise that issue with the arresting officer. Thanks for nothing, Robotman.

Here is a funny tweet about courtroom sketch artists.

Colin Miller of the EvidenceProf Blog remarks upon Adam Sandler. And Adam Sandler litigation. And litigation with similar themes to Adam Sandler films. Read it here. (Oh, and if you haven’t seen Red Letter Media’s ultra harsh video review of Sandler’s Jack and Jill, you’re missing out. Really, seriously, you should check out that movie review.).

The always great Letters of Note blogs publishes the famous 1988 legal letter from Laramie, Wyoming attorney Becky Klemt to a California lawyer who asked for a $100,000 retainer and a $1,000 per hour rate to collect a partially unsatisified judgment of $4,239.84.  If you’ve not read Klemt’s letter, please do so, as you can’t help but enjoy it.

William K. Berenson, a Plaintiff’s lawyer blogging at the Fort Worth Injury Lawyer Blog, offers “McDonald’s Hot Coffee Case: Bet You Didn’t Know That . . . .” (Warning: A graphic image of Stella Liebeck’s burn injuries is embedded in the entry.).

Spoiler Alert: Cannibalism is Bad (According to Gloria Allred)

We here at Abnormal Use normally wouldn’t waste time on someone frivolous and unserious like Gloria Allred.  Okay, who are we kidding?  We love it when people say or do dumb things.  And this week Gloria Allred gave us a real gem when she remarked: “cannibalism is a serious issue and is very dangerous to the health and well-being of the cannibal and victim.”  Seriously, those words came out of the mouth of a licensed attorney.

Yovonka Bryant, the self professed girlfriend of the man killed by police as he gnawed off a homeless person’s face, stepped forward last week to speak out against what her attorney called a growing scourge: cannibalism.  Her attorney is, of course, none other than “celebrity” lawyer Allred.  At a bizarre Miami news conference, Ms. Allred stated, “Yovonka and I are very concerned about the issue of cannibalism and the number of cases that are being reported . . .”  She added, “It is very important that the social taboo and stigma that have long been attached to this subject continues and that society condemns cannibalism, rather that trivializing it or glamorizing it.”

We think Ms. Allred has hit a new low, which is quite an accomplishment given her past body of work.  Of course, arguably, this is just par for the course for her, and she certainly seems to think so.  When questioned at the press conference as to why Ms. Bryant would need an attorney or press conference to discuss such a ridiculous topic, Ms. Allred stated, “[t]his is a high-profile case . . . . I make no apologies for being here to support [Ms. Bryant].”

Where would the world be without such legal scholars?  I wonder if she had to do any Westlaw research to verify that cannibalism was, in fact, dangerous.  Perhaps she consulted with medical experts.  Either way, we appreciate her legal scholarship and diligence in bringing this matter to our attention.  In fact, just this afternoon, the wife and I were debating between gnawing someone’s face off for dinner or heading to Trader Joe’s to grab some sushi.

Thank goodness for Ms. Allred’s PSA.

(Hat tip: Overlawyered).


An Open Letter to Law Firm Associates

This is an open letter to law firm associates, everywhere, wherever they may be, regardless of the size of their firm or the nature of their practice.

I am aware that you are in love with the cut ‘n paste mode of creating documents and letters.  I love it, too.  A wonderful time-saver.  One can be very efficient in using this mode of document creation.  I have used it to my advantage many times.  Yet, there are traps for the unwary, a veritable minefield of explosives lurking below the surface.  That is why many law firms have adopted the Uniform Guide to Law Firm Associate Behavior (“UGLFAB”).  Rule No. 12.3(c)(2)(iii), of the UGLFAB states, in pertinent part:

Associates who employ the cut ‘n paste method of document generation, do so at their own risk and peril.  There will be NO EXCUSES, NO WAIVERS OF LIABILITY, NO WHINING THAT PARTNER IS UNREASONABLE, and NO GET OUT OF ASSOCIATE JAIL FREE CARD.  HEREOF FAIL NOT.

Perhaps your firm’s management committee has been busy with other stuff, like recruiting – which is important (especially since VIOLATION of the Cut ‘n Paste Rule can be TERMINABLE OFFENSE) – so I am taking this opportunity to provide this friendly reminder. Remember: Proofread everything!

I have previously referenced one of my favorite legal resources, The Official Lawyer’s Handbook, by D. Robert White, Esq., published in 1983 by Wallaby Books.  One of the chapters is titled, “How to Survive and Make Partner in Your Law Firm.”  Rule No. 3 in that chapter is “There is No Such Thing as a ‘Draft.’”  As White points out, the word “draft” is a term of art and “failure to understand its specialized meaning has left many an eager and capable associate consigned to proofreading loan agreements for the duration (short) of his stay with his firm.”  Perhaps you have encountered this potential disaster of misunderstanding the term “draft.”  A partner asks you to provide him with a “draft” on a particular point.  “More often than not, he will camouflage the trap by saying something like, ‘Just get me a quick draft,’ or ‘Just whip off a draft,’ or even ‘Just dictate a rough draft.’  The emphasized words should trigger flashing red lights in your mind.”

That the partner has asked for a “draft” does not mean that he will tolerate the sloppy cut n’ paste method, which you have failed to proofread.  It does not mean that the partner will tolerate typos or that you should not have checked all your cites in advance.  As White concludes, “everything you submit to a partner should be suitable for framing.  No matter how casual the request, how insignificant the task, or how few the dollars at issue, the test you should apply to everything bearing your name is its suitability for hanging in the Sistine Chapel of legal documents.”

By the way, Rule No. 1 is CYA.

Family Sues Funeral Home Over Switched Bodies

Once upon a time, I represented a funeral home on a claim for negligent embalming.  At least they had the right body!

The L.A. Times recently reported that Mercedes Adilia Rodriguez had specific instructions for her funeral, including a closed casket and burial in her hometown in Nicaragua, rather than in Southern California.  Shortly after her death, the funeral home allegedly admitted it had made a mistake and that Ms. Rodriguez had been confused with someone else.  The family sued, alleging in their complaint against the funeral home that Ms. Rodriguez went through another woman’s funeral, in an open casket, dressed in the other woman’s clothing, and buried in a cemetery marked with the other woman’s name. The L.A. Times further reported that the family has alleged that while the funeral home refunded the funeral costs, they claim damages for being “forever haunted by the vision of how a complete stranger’s family and friends mourned, touched, kissed, and cried” over Ms. Rodriguez’s body.  While there have probably been other cases like this in the past, we were particularly interested in the online comments offered by the story’s readers.  The funeral home accepted responsibility, refunded the cost of the funeral, and apologized.  Based on these readers’ comments, the plaintiffs are going to have a tough time making their case.

“This lawsuit is wrong on so many levels.  It’s interesting they can put a price on their emotional turmoil.”

“It does make you wonder how bereaved they are if they can manage to file a lawsuit.”

“What a bunch of slimy money-grubbers.”

“Disgusting that the family of this woman would capitalize on this mistake . . . ambulance-chasing scum attorneys.”

“Another moneymaker for bottom-feeding lawyers.  This mistake is nothing more than an excuse to get a little extra cash.”

“Go earn money instead of trying to make it on the backs of others.”

The Rodriguez family will probably want to strike most of these readers from any potential jury pool.

Stop the Texts, Stop the Wrecks

My 87-year-old mother recently moved from her home in North Carolina to live with my sister in Pennsylvania.  She would no longer need her car, a 2000 Mercury Sable, and therefore, gifted it to my 15-year-old son for his birthday.  On one condition: that he agree not to text or talk on his cell phone while driving!  He agreed.

I have defended a number of lawsuits over the years where the at-fault driver was alleged to have been on a cell phone at the time of the accident.  But, the problem of distracted driving is not new.  Surely, the folks who drove the first cars in the early 20th century experienced distractions, perhaps when they passed a neighbor who was in a horse-drawn buggy?

According to AAA, “passengers are one of the most frequently reported causes of distraction, with young children being four times more distracting than adults and infants being eight times more distracting.”  Indeed, my first experience with distracted driving was when I was 18 years old, driving home from high school in my brand new 1980 Plymouth Horizon.  The distraction?  The four other teenage boys in the car with me!  I passed a stopped school bus, got an expensive four-point ticket, and was well on my way to a distinguished driving record.

While texting, emailing, or talking on a cell phone can be dangerous, so too is eating, smoking, changing the channel on the satellite radio, or just “rubbernecking.”  Some years ago, I defended a garbage truck driver who was distracted while drinking a 16-ounce bottle of Mountain Dew.  The result?  He ran right into the back of another truck!  Nobody got hurt, but the owner of the other truck filed a lawsuit for their property damage.  We lost.

Cell phones?  AAA reports that using a cell phone while driving quadruples your risk of an accident.  Driver inattention is a factor in over one million car crashes every year, with an economic impact of almost $40 billion annually.  Just Google “cell phones and driving.”  What are the results?  “Drivers on cell phones are as bad as drunks.”  “Despite the dangers, teens admit to cell phone use while driving.”  “Drivers on cell phones kill thousands, snarl traffic.”

The National Highway Transportation Safety Administration (NHTSA) is sponsoring a campaign to prevent texting and driving.  Information can be found on their website at  According to the NHTSA, five seconds is the average time a driver’s eyes are off the road while texting.  While traveling at 55 mph, that is enough time to cover the length of a football field.  A texting driver is 23 times more likely to get into a crash than a non-texting driver.  Using a cell phone while driving delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.

Both the AAA and NHTSA provide suggestions for improving driver behavior.  (1) Out of sight, out of mind.  When you are in the car, put your phone where you cannot get it.  A place where you will not even be tempted to look for it.  No phone.  No texting.  (2) Silence is golden.  Turn those notifications off.  The less you hear your phone, the less tempted you will be to respond while you are driving.  (3) Designate a texter.  Borrow thumbs from a friend, or lend yours to a friend.  Passengers get the privilege of texting while in motion.

Not everyone should text and walk.  No one should text and drive.