Friday Links

What is up with the mugshot procedures in the Gotham City Police Department? Apparently, it’s a free for all, and as depicted above, criminals can make a mockery of their mug shots with impunity. Surely the booking officers there have a bit more control over the process, eh? By the way, that’s the cover to Gotham Central #15, published not so long ago in 2004. (To see a different comic book mug shot profiled some time ago on Abnormal Use, click here.).

If you’ve ever asked yourself “where does [Plaintiff’s lawyer and blogger of note] Max Kennerly stand on frivolous lawsuits?”, then this series of tweets is for you.

Although we’ve knocked Bob Dylan in the past (here, a brief reference  here, and here), we must confess that we really dig his new album, Tempest.  Who knew he still had it in him? To learn more about it, see here.

Speaking of music, we note that the opening lyrics of Angel Olsen’s new song, “Miranda” are, in fact, the famed Miranda warnings. It’s a sad love song, though, not a ballad of criminal procedure. The song appears on the album Half Way Home, which was released earlier this month.

Congratulations to Abnormal Use blogger Nick Farr,  and his wife Jill, on the birth of their new son Hayden Andrew Farr, 9 lbs and 21.5 inches long born on 9/22 at 7:05 am. You can follow Nick on Twitter here!

The “Popcorn Lung” Case: A Lesson in Marketing to the Jury

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good.  Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome.  The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

The Most Important Unwritten Rule: Depositions Should Start at 10:00 AM

We, as lawyers, learn many, many rules from many, many texts, including statutes, cases, regulations, and such.  But what allows a practitioner to rise above the rest is his or her knowledge of the unwritten customs of the practice of law.  These practices vary from jurisdiction to jurisdiction, state to state. The most universal of them all, though, is the old familiar rule:  no depositions should start before 10:00 AM local time. Really, this informal custom is part of the glue that holds our profession together.

Really, this should be incorporated into some future draft of the state and federal rules of civil procedure.  Generally, most lawyers follow this unwritten custom, taking into account the fact that colleagues planning to attend a deposition may want to stop by their own office first or travel from another city before arriving at a deposition.  The standard 10:00 AM start time even permits an attorney flying in from a far away jurisdiction to possibly catch an early flight and arrive on time.  If not, this standard start time allows those who fly in the night before to accustom themselves to their new surroundings and make it to the deposition without unnecessary haste. All in all, the custom preserves some level of peace and tranquility.

I raise this issue because lately I have seen a number of notices calling for the deposition to begin at – gasp – 9:00 AM.  Oh, the humanity! Mind you, these instances were not circumstances where the deposition needed to start earlier than 10:00 AM. Rather, the noticing party just decided to set the deposition start time at 9:00 AM. Alas. Of course, there are exceptions to the informal rule, typically doctor depositions, because physicians may only be able to present themselves at some unusual time before or after business hours. And, of course, there’s always the occasional witness who may only be available at some strange and unusual time. But generally, depositions should start at 10:00 AM.  No question.

Summary Judgment For Crocs in Massachusetts Escalator Injury Case

In July, 2010, an eight-year-old girl referred only as “N.K.” in court documents sustained injuries when her foot became caught in the side skirt of a moving escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station.  At the time, N.K. was wearing Crocs-brand sandals and riding a few steps ahead of her parents.  N.K.’s parents and other witnesses tried to stop the escalator by using its emergency stop switch, but that didn’t work.  A good samaritan finally managed to pull N.K.’s foot out of the escalator before it reached the top. N.K.’s mother, Nancy Geshke, brought a products liability action in Massachussetts federal court against Crocs, Inc.    We’re not sure if the elevator manufacturer or the MBTA were ever parties to the action, but in any event, the case proceeded against Crocs.  In its opinion granting Crocs’ motion for summary judgment, the district court discussed the various warnings posted on the escalator itself, portraying children getting caught in the escalator and warning of the same in writing, so perhaps Plaintiff chose not to pursue that avenue. See Geshke v. Crocs, Inc.,  No. 10-11567-RGS (D. Mass. Sept. 7, ,2012) [PDF].

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

CPSC Recalls Blinds with Strangle Hazards (With Illustrations)

Recently, the Consumer Product Safety Commission recalled custom-made horizontal and vertical blinds manufactured by Michigan-based Blind Express.  According to the CPSC report, the vertical blinds contain adjustment cords that do not attach to the wall or floor.  Likewise, the horizontal counterparts do not possess inner cord stops to prevent the cords from being pulled from the blinds.  As a result, children can become entangled in the cord loops.

The recall was prompted by a report of a 2-year-old girl strangled in the cord of some vertical blinds.

We here at Abnormal Use have not always seen eye-to-eye with the CPSC.  The CPSC, for all the good it does, is sometimes overzealous with its recalls.  In this instance, however, we can agree that loose blind cords present good grounds for a recall – especially when young children are placed in harm’s way.

Nevertheless, while we may support the end result, let us be a little a critical of the CPSC’s methods.  Just check out these photos from the CPSC recall notice:

Wow. We can understand using “fire and brimstone” tactics to make a point, but hanging baby dolls may be a bit excessive.  The blinds pose a strangulation hazard.  We get that.  But please explain how babies get trapped in the cords and then somehow suspended in mid-air?  We are guessing these are not accurate depictions of the hazards.  Something about these photos screams more psychopath journal than instructional warning label.

Illustrative warnings can be helpful – and sometimes even necessary – to get the point across.  Sometimes, however, a simple diagram will suffice.

Friday Links


Above, you’ll find the cover for Daredevil #16, published not so long ago in, well, 2012. (We’ve previously mentioned Daredevil, and his lawyer alter ego Matt Murdock, here and here, and we even interviewed Daredevil writer Mark Waid a year ago.). This is a pretty depressing cover. Although we’ve not yet read the issue (because it is so new), it appears that Murdock and his long time friend and law partner Foggy Nelson are parting ways. Murdock’s name is even crossed  out on the firm’s front door.  That’s not good. We knew that there were some tough times out there for the legal profession, but when Daredevil has to leave his law firm, it’s getting ridiculous!

Of course you know of Edward Herrmann, the character actor who played the evil head vampire in The Lost Boys. He’s played FDR on screen an few times, too. The Onion A.V. Club recently interviewed him as a part of its “Random Roles” series, and in so doing, they asked him about his role in The Paper Chase, the classic law school film.  Here’s what he had to say:

Oh, that was fun. I was in New York, I got there in ’70, and it was basically my first proper movie. Besides, of course, that immortal performance in Lady Liberty. [Laughs.] We shot it up in Kleinburg, in Ontario, and there were two big soundstages, and they built that lecture hall on one of the stages. Next to it was a film that was being directed by a director I eventually worked with, a wonderful director named Dan Petrie, who did the Roosevelt films [Eleanor And Franklin], and he was doing one with Ben Gazzara and Yvette Mimieux and Ernest Borgnine [The Neptune Factor]. It was about submarines, and they go down and there are creatures that eat them and all of this stuff. It was science fiction. And, oh, God, I’d go over there during lunchtime, and I saw all of these sets, all of these aquarium tanks where they had versions of the characters made out of fish food so that the fish would eat them. And I thought, “Boy, this is a real movie! All we’re doing is talking!” [Laughs.]

But Anderson was fun. It was a bunch of great actors. Graham Beckel and Tim Bottoms. But John Houseman came up, and it was touching, because he was nervous as hell, and he kept blowing his lines. It was a little scene in the office, one of his first scenes, and I felt the need to be cordial… me, the old veteran, who had never made a proper movie. [Laughs.]

But it was very useful, because down the street there was a Bette Davis festival going on. And they were proper 35mm prints, and I saw for the first time, classic, top-of-the-line Warner Bros. ’30s sob-sister movies, and… I began to see, “What’s all this fuss about Bette Davis? She overacts, she’s got splinters in her teeth from eating the scenery. But who’s this guy George Brent? He’s wonderful… because he doesn’t do anything!” And it helped me in The Paper Chase, because James Bridges was directing, and he was really wonderful with us youngsters. With the study table, the camera would go around and pick up all of our close-ups and stuff, and I was acting my socks off. And he said, “Great, cut, print. That was wonderful, but… they can see that in the balcony, so can you just pull it back just a little bit?” So I did. “Great, cut, print. Okay, that was in the mezzanine.” We did it again. “Now we’re in the orchestra.” I brought it back and brought it back until I thought I wasn’t doing anything. But then I went to see George Brent, and I realized, “He’s not doing anything except for being he’s the guy he says he is.” And that was a real lesson in film acting.

By the way, we’re pleased to announce that Todd R. Davidson has joined our firm’s Greenville office as a partner. With 23 years of experience as a transactional attorney, Todd will be a great addition to our firm’s Business and Commercial Practice Group. We have not yet convinced him to join the blog, though. But we’re working on it!

Defamation Suit Over Getting “Slimed”

Beef Products Inc. (BPI) was featured in ABC News reports a number of times this spring.  As you might guess from the title of this article, the news reports were not favorable.   The reports concerned possible health and nutrition issues with BPI’s “lean finely textured beef.”  ABC News even went so far as to refer to it as “pink slime.”  In response, BPI has filed a defamation lawsuit against ABC News, Inc., among others, seeking $1.2 billion in damages over the allegedly false and malicious coverage.

BPI’s “lean finely textured beef” is produced in a process by which bits of beef are heated and treated with a small amount of ammonia to kill bacteria and then compressed together for use in ground beef products.  Yummy!  Apparently, this practice meets federal food safety standards, and the product can properly be referred to as beef.   It does not appear that the USDA has ever declared the product to be unsafe.  Of course, that really only means that the product probably won’t make you sick.  It doesn’t necessarily mean that the product is nutritious.

According to the lawsuit, ABC News ran 11 television segments and 14 online news stories in March and early April of 2012 as part of a “month-long vicious, concerted disinformation campaign against BPI.”   BPI’s attorney claims that the reporting was designed to mislead consumers to believe that BPI’s “lean finely textured beef” was unhealthy and unsafe.  BPI has allegedly had to close three of its four plants and lay off 700 workers.  However, ABC was certainly not the first entity to refer to BPI’s finely textured beef as “pink slime.”  A Department of Agriculture microbiologist (also named in the suit) apparently coined that term a few years ago.

Unfortunately for BPI, defamation claims are notoriously hard to prove.   Not only will BPI have to prove that the information was false, but it must also prove that the ABC News knew that information was false and chose to ran it anyway.  Proving ordinary negligence by a news outlet just won’t cut.  Luckily for the media, they can be negligent until the cows come home (pun intended) with little or no repercussions.  In fairness to ABC News, I took a look at several of the stories archived on the ABC News website and nothing in them appeared to give BPI much of case (see e.g., story number 1).

Regardless of the merits of this particular lawsuit, it does go to show the power of the media.  It makes you wonder whether the law should allow a news outlet to be held accountable if it negligently runs a series of false stories that essentially put a company out of business and 700 employees out of work.  Discuss among yourselves.


$1.7 Billion Claim . . . Over Parking Meters

What’s an ear infection, ringing of the ears, and tightness of the neck/back worth?  According to a California woman, it’s worth $1.7 billion.  Yes, you read that right!  That’s billion with a “b,” not million with an “m.”  And the culprit that has caused such grievous injury?  None other than the city’s newly installed “smart” parking meters.

The City of Santa Monica, California recently installed smart parking meters that allow drivers to use smartphones and credit cards to purchase metered time.  The parking meter slots have sensors that will reset a meter when a parking space is vacated.  A local woman named Denise Barton recently filed a lawsuit seeking a mere $1.7 billion plus $1.7 million per month thereafter in damages because the wireless signals emitted from the meters are making her sick.  Apparently, shortly after the parking meters were installed, she developed an ear infection which required antibiotics to treat.  She must have one hell of a doctor, because he was able narrow the cause down to the city’s new parking meters.

The City of Santa Monica claims the wireless emission is at a very low level and extends only up to eight feet from the meter.  Assistant Finance Director Don Patterson told the Santa Monica Daily Press, “The Wi-Fi is very low level and only communicates between the meter and the sensor, about 5 to 8 feet… It’s the same as someone using a cell phone walking on the sidewalk.”  According to the city, the meters comply with all necessary regulations related to wireless communication.

There have been no other complaints over health issues caused by the meters, except those of Barton.  Although the dangers of wireless radiation have been widely disputed, the studies usually focus on holding a cell phone to your head for long periods of time.  The studies don’t access the dangers of walking past someone sending a text message.  Then again, we’re sure Barton’s attorneys have some great new studies because we all know an attorney would never file a frivolous claim.  However, if that’s the case, why on earth isn’t she suing the cell phone carriers for her health issues?  Perhaps those mammoth companies don’t have deep enough pockets for her $1.7 billion claims?

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.

Baseball Bat Manufacturer Has Good Day in Court, At Last

Over the last few years, Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats, has endured much litigation.  In 2009, a Montana jury awarded a family $850,000 after their son was killed by a ball struck by the aluminum bats.  Last month, the company settled the claims of a New Jersey teenager severely injured in a similar accident for $14.5 million.  The multi-million dollar settlement came on the heels of another $951,000 verdict from an Oklahoma federal jury.

Things weren’t looking too good for the bat manufacturer, to say the least.

In a twist of fate, however, an Oklahoma court tossed the $951,000 jury verdict just days after the massive New Jersey settlement.

The jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries.  In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn.  Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball.

On Hillerich’s post-trial motions, the court held that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.'” Certainly an aluminum bat can create increased bat speed, but does this necessarily mean it is more dangerous than its wooden counterpart?  As Forbes writer Dan Fisher, noted:

[T]he experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball.

Apparently, the plaintiff also never established that the bat – and not some other extraneous factor (i.e. a good hitter) – was to blame for the injuries.  As the judge noted, a “verdict may not be based on this kind of conjecture.”

The theory behind these Louisville Slugger suits is an interesting one.  Undoubtedly, an expert of some sort can testify as to the increased bat speed created by aluminum bats.  We imagine, however, that even a well-struck ball by a wooden bat could cause facial injuries.  The only way to prevent such injuries is to use baseball equipment manufactured exclusively by NERF.  Unfortunately, sport and injury often go hand-in-hand regardless of the equipment used.

The more intriguing question may be the tremendous discrepancy between the jury awards and the multi-million dollar New Jersey settlement.  While every case and jury is different, damages may not be the issue – the “smallest” verdict involved a child that was killed.  As Ted Frank at the  Point of Law blog notes:

The fact that Oklahoma caps noneconomic damages surely made a difference here: without the threat of jackpot justice, the defendant could defend itself without fear of disproportionate liability.

A factor, to be sure.