Friday Links

Above, you’ll see the cover of Batman – Bruce Wayne: Fugitive #1, published not so long ago in 2002. We direct your attention to the wanted poster hanging just above where Batman is standing. Now, let’s not consider the great coincidence of Batman happening to find himself right next to a wanted poster featuring a picture of Bruce Wayne. Let’s instead focus on the wanted poster itself. First off, it doesn’t suggest what the reader is to do if he or she happens to see Bruce Wayne. There’s no toll free number to call; there’s no reference to any police force or law enforcement authorities to contact. Plus, there’s not even a hint of a reward! No wonder Bruce Wayne is running around free somewhere!

Okay, so who pre-ordered an iPhone 5 today? Not us, we must confess. We here at Abnormal Use will wait for the iPhone 6. If you did, please let us know if you were successful. Further, to keep up with all the iPhone related madness, we suggest you read Jeff Richardson’s excellent iPhone J.D. blog, which is covering this story in full.

Our fearless leader, Mills Gallivan, has been elected to serve as the President of the National Foundation for Judicial Excellence (NFJE).  The NFJE, established in 2004, is a non-profit organization that supports an independent and well-versed judiciary in order to promote excellence and fairness in the civil justice system.  The NFJE accomplishes this task through providing education to the judiciary as well as hosting an annual national symposium for state appellate judges.

How long has it been since you read the Abnormal Use mission statement, published way, way back on January 4, 2010? If it’s been a while, or if you’ve never read it, you can check it out here.

Earlier this week, we ran a post on the Aurora, Colorado shooting litigation. That post has drawn a few comments, so if you missed that exchange, be sure to revisit it.

iPhone 4 Screen Lawsuit Tossed in California

The iPhone 5 is set to be released soon, and as per usual, it appears that it will be another in the long lines of wins for Apple.   It will arrive in stores just as Apple wraps up a lawsuit over broken iPhone 4s.  A federal judge in San Jose, California, recently threw out a class action lawsuit from iPhone 4 owners who claimed that Apple misrepresented the strength of the phone’s glass screen. The case is Williamson v. Apple, Inc., No. 5:11-CV-00377 (N.D. Cal. Sept. 4, 2012).

In the lawsuit, the complaint alleged that Apple’s claims that its phone’s  glass screen was “20 times stiffer and 30 times harder than plastic” were misleading, citing a study that the glass on the iPhone 4 breaks at a rate 82 percent higher than previous iPhones.  District Court Judge Edward Davila disagreed.  In his order dismissing the case, he stated that “it is a well known fact of life that glass can break under impact” and ruled that Apple did not breach a warranty or violate consumer protection laws.

I’ll admit that I have noticed a large number of of people walking around with cracked iPhone screens lately.  Are the screens really up to snuff as described in Apple’s marketing materials?  I could certainly see an argument that the ads might lead you to believe that the odds of breaking the glass are very low.  Especially when the materials appear to tout the glass screens as stronger than plastic screens, which rarely shatter.  However, the judge based his decision on the fact that Apple never stated that the iPhone 4 was “resistant to normal wear and tear, that the glass housing would never break or crack under normal use, or that the phone might not be damaged if it was dropped.”

So, it appears all of you iPhone 4 users rolling around with cracked screens aren’t going to hit the jackpot this time.  It might just be time to just pony up for that shiny new iPhone 5 with a fresh screen. Good luck.


Lawsuit Looms in Wake of Colorado Theater Shootings

Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons?  According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.”  Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.

The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss.  One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice.  I believe that the primary responsibility at this point rests with Cinemark.”  Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.

It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark.  I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.

I feel a lot of compassion for the victims and the families of the victims of this heinous crime.  I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer.  However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer.   Of course, a theater owes a duty to its patrons to keep them safe within reason.   But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon.   Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon?  As recent events have show, even the military struggles to protect their own under similar circumstances.

If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons.  It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening.  This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums.  These costs will undoubtedly be passed on to the consumer.

Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function.  Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.


CPSC Cuts Machetes Over Laceration Hazard

The Consumer Product Safety Commission is at it again.  Now, the CPSC has recalled the Bear Grylls Parang Machetes manufactured by Gerber because, get this, the product allegedly is a laceration hazard.  Yes, you read that correctly.  A machete has been recalled for being a laceration hazard.  Sounds ridiculous, sure.  But before we criticize the agency for its over-zealousness, we must admit that the CPSC may – at least this time – have some ground for its decision.

According to the CPSC, the machete has a weakness near the point where the handle meets the blade.  When in use, the machete’s handle or blade can break, posing a laceration hazard.  There have been 24 reports (out of 119,000 units sold) of breakages and one report of a laceration injury.  There have been no reports of injuries necessitating stitches.

Even we here at Abnormal Use can appreciate the risk of a runaway machete blade.  But is there really enough evidence to issue a recall?  With only 24 reports of breakage out of thousands sold, it is difficult to determine whether the product truly is defective. There is no evidence as to how the machetes were being used when they broke, so it is premature to comment on the product’s defectiveness in either design or manufacture.  Nevertheless, we suppose when it comes to sharp objects, an abundance of caution is necessary.  After all, we would hate to see an episode of Man vs. Wild interrupted because Grylls was injured while using the machete to make a lean-to out of an alligator carcass.

On a positive note for Gerber, with only one minor reported injury, this recall may have come early enough to avoid any potential litigation.  In the event litigation comes to fruition, however, we imagine the defense will have no problem coming up with a theme.  And, of course, the puns will run rampant.

[Hat Tip:  Boston Personal Injury News]

Plaintiffs’ Bar Tries to Run the Option on Res Ipsa Loquitur; Sacked by Supreme Court

The South Carolina Supreme Court recently shut down an attempt by the Plaintiffs’ bar to make an end-run around the rules of evidence. The case centered around the admissibility of expert testimony that would have made Rule 703 about as effective as the Maginot Line. See Graves v. CAS Medical Sys., Inc., Op. No. 27168 (Aug. 29, 2012).

Here’s how the play developed: It was alleged that defendant CAS designed and manufactured a medical device that monitored the breathing and heart rates of newborn children. If either of those rates became too fast or too slow, the device would sound an alarm, and data about the event would be recorded. The device also had a separate system that tracked whether the alarm sounded. On the night of April 10, 2004, Plaintiffs’ daughter, who was being monitored by the device, experienced a significant decline in her breathing and heart rates and ultimately passed away. Her cause of death was later diagnosed as Sudden Infant Death Syndrome.

Make no mistake: this was an unspeakable tragedy for Plaintiffs’ family, and our deepest sympathies go out to them for their loss. It is regrettable that any discussion of products liability cases almost always involves difficult facts. This is especially true in this case and cases like it, where the injured party is a child and the nature of the injury is death. We here at Abnormal Use would much prefer a world where there was no need to report on such cases ever again.

In any event, a case was eventually brought against CAS on the theory that their device failed. Plaintiffs’ testimony (which was ostensibly obtained at deposition) was that the CAS device’s alarm never sounded. As a consequence of the device failing, Plaintiffs did not know that their daughter’s breathing and heart rates were falling, and never had an opportunity to resuscitate her.

Here’s where the theory of the case gets interesting. Plaintiffs’ counsel alleged that the CAS’s alarm did not sound due to defect in the device’s software. In furtherance of this theory, counsel retained three experts in software design to discuss “spaghetti code,” which is apparently when an electronic signal working its way through software code gets misdirected by certain external inputs, resulting in the device’s failure to perform as intended. In this case, it was alleged that the CAS device properly detected that Plaintiffs’ daughter was experiencing respiratory distress, but that due to spaghetti code, the signal to the device’s alarm was misdirected, causing the alarm to never sound.

Let’s stop here for a second. Hypothetically, there are three possible explanations for why the device “failed.” One is that the device was defective. However, the device was tested and found to function properly. Therefore, it was conceded that “hardware error” was not at issue. The second cause of failure is that the software failed, as discussed above. The third cause—which is not really failure—is that the device functioned as intended, but that Plaintiffs never heard the alarm sound. This case essentially boiled down to a contest between “software error” and “complaint error.”

Plaintiffs’ position was that software error must necessarily have been the cause, according to an analysis which was novel in the state of South Carolina: the “reasoning to the best inference” analysis. Or as I like to call it, the Sherlock Holmes analysis. In The Sign of the Four, Sherlock Holmes famously quipped, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” And that is the intellectual underpinning of the “reasoning to the best inference” analysis. If all the possible causes for an event can be identified and eliminated, save for one, the one possible cause that remains must have been the actual cause for the event’s occurrence.

In this case, hardware error had been eliminated. And from Plaintiffs’ perspective, complaint error had been eliminated. There was testimony from each adult in the house at the time of the decedent’s passing that no alarm had sounded. Therefore, again from Plaintiffs’ perspective, the only possible cause that remained was software error.

Critically, the Supreme Court seemed willing to accept the Sherlock Holmes analysis as a viable way to establish circumstantial evidence of causation, at least in the abstract. But the Court was not impressed with how it was applied in this case. First, there was the inherent, self-serving nature of the testimony. Of course Plaintiffs’ position would be that the alarm never sounded. It would seem somewhat unfair to allow complaint error to be ruled out by the unilateral testimony of the Plaintiffs. Especially since the device was tested later and found to work properly. Relatedly, there was an equally likely explanation for the device’s alarm to have not been heard: Plaintiffs slept through it. The Court’s opinion notes that the CAS device reported that the alarm had sounded. Ultimately, these questions created an issue of fact that prohibited complaint error from being ruled out as a possible cause of the alarm’s failure.

There was a third problem with Plaintiffs’ case though. None of Plaintiffs’ experts had been able to identify any portion of the source code that would have misdirected the alarm’s signal. Instead, they had merely postulated that, because hardware error and complaint error had (in their opinion) been eliminated, software error must have been the cause. Furthermore, according to their “spaghetti code” theory, a misdirected signal could have been triggered by any type of unanticipated external input, which may never be capable of identification.

As if this weren’t enough to give the Court heartburn, there was more to Plaintiffs’ theory. For proof that the device was subject to software error, Plaintiffs wanted to introduce other complaints (approximately fifty) that had been filed with the federal Food and Drug Administration of the CAS device’s failure. There was no way to determine the underlying circumstances of these other complaints, nor was there any way to substantiate them.

Under these circumstances, the Supreme Court did the only thing it reasonably could do: the Court shut the Plaintiffs’ case down. There was absolutely no evidence that the CAS device failed. At best, there was a question of fact as to causation between software error and complaint error. Ordinarily, for purposes of summary judgment (which is when Plaintiffs’ case was dismissed by the trial court), a question of fact is sufficient to survive and present the case to the jury. But in a products liability case, there must be some evidence that the product in question was defective. In this case, there was none. And it is a matter of black-letter law in South Carolina that products are not presumed defective merely because an injury occurred.

All things considered, it appears reasonably clear that Plaintiffs were trying to use the Sherlock Holmes theory as a back-door way of introducing the doctrine of res ipsa loquitur into South Carolina law. Res ipsa is the theory that an injury would not have occurred but for the fact that some negligent act also occurred which caused the injury. Although res ipsa is a favorite topic of first-year Torts professors, in South Carolina, the doctrine has been expressly rejected. First, in Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 79 (Ct. App. 1991), and more recently, in Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 684 (2010). It is worth noting that the same counsel who represented the plaintiffs in Watson also represented Plaintiffs in Graves. He gets a big ol’ Abnormal Use A+ in persistence.

Graves is an excellent decision for defendants in products liability actions. However, it remains to be seen how the Sherlock Holmes analysis will be used, and perhaps abused, in subsequent litigation, now that it appears to be a viable method of establishing causation.

Friday Links

Just as we did last week, we turn this week to Superman: The Man of Steel, issue #51 to be exact, because of its connection to the fabled “Trial of Superman.” On the cover, Superman appears to be sword fighting with a pirate, which must be true, because the narrative title is “Sky Pirates.” Why Superman is using a sword is beyond us, but the real question is what any of this has to do with a trial. Whatever the case, we certainly object to Superman’s hairstyle.

Don’t forget! As we noted yesterday, TODAY is the deadline to nominate legal blogs to this year’s ABA Journal Blawg 100 list. If you’d like to nominate a blawg (perhaps even us), you can do so here.

We’re big fans of @TweetsOfOld, a Twitter account that posts “tweets” – really just short news items – from really old newspapers.  One such tweet this week, from a 1917 Missouri newspaper, shows that not much has changed in personal injury litigation in 95 years. (By the way, we’ve previously mentioned @TweetsOfOld here, here, and here.  If you’re feeling nostalgic, check it out.).

Abnormal Use Flashback: One year ago this week, on September 6, 2011, we ran”Vice Squad: On Assignment in the Gulf” by our own Steve Buckingham. Revisit a classic post.

You love social media. You love Facebook. You love Twitter. But are you communicating with us on those platforms? You can follow Abnormal Use on Twitter here and on Facebook here! Acknowledge our existence!

The ABA Journal Blawg 100 Nominations

The ABA Journal is once again working on its annual list of the 100 best legal blogs.  At present, the publication is soliciting nominations from its readers for blawgs to add to this year’s list.  Accordingly, we humbly request that you nominate us for the honor.

Note: The deadline to do so is tomorrow, September 7, 2012, at 7:00 PM Eastern time.

The ABA Journal is not just looking for the name of your favorite blog. They’d like you to offer a few lines about why that particular blog is your favorite.  What has the blog done in the past calendar year to earn your favor?  Why is it that you enjoy reading that blog?  Is it, say, a regular feature, its editorial tone of voice, a particularly impressive series of posts, or just the subject matter itself which intrigues you?

Allow us to do a bit of electioneering.  We’ve had a good year here at Abnormal Use.  Remember, this is the year when we celebrated the twentieth anniversary of My Cousin Vinny in March and featured not just interviews with cast members but also the director and screenwriter of the film.  We also ran a particularly obscure April Fool’s Day joke regarding the works of a horror writer, who died 75 years ago.  We even published a haiku on Mountain Dew.  And, of course, we indulged our editor’s penchant for nostalgia by commemorating the tenth anniversary of his graduation from law school.  We even shared with you the tale of one of our attorney’s being burned by his own Facebook profile page at a mediation.  And, of course, we ran a week long series on the perils and pitfalls of practical legal education.  Throughout the year, we have continued to bring you news on the latest product liability litigation and jurisprudence, each business day, as we have since January 2010.  So, if you like us, please feel free to nominate us for the ABA Journal’s list.

There are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  We here at Abnormal Use – who are prohibited by the rules from nominating ourselves – would probably be too bashful to vote for our own site, anyway. Whatever the case, some of us here have already nominated a few of our favorite blogs for inclusion onto the list (including at least one blog which we read and enjoy but with which we disagree regularly).

You can complete the very brief nomination form here.  It will only take you a few moments.

We would appreciate your vote, and even if we are not your favorite, we would encourage you to participate in the process.

Live from Charlotte: The 2012 Democratic National Convention

Yesterday, September 4, 2012, the Democratic National Convention began here in Charlotte, North Carolina.  You have have seen the opening speeches on television last night. Really, the convention is all anyone in Charlotte is talking about this week, and if you’re on Twitter, good luck finding a non-DNC related tweet in the Charlotte Twitter community.  (In fact, you can monitor all of the celebrity sightings in Charlotte by following this Twitter account). So, we feel obligated to dedicate at least one post to the event which has overtaken our city this fateful week.  So, let’s talk about the most exciting component of the convention: its effect on the local court system.

Yes, some – but not all – courts are closed this week. Click here to see the “Mecklenburg County Courts Operational Schedule During Democratic National Convention,” a new release issued by the 26th Judicial District of North Carolina, which encompasses the Charlotte area.  As the news release indicates, the courts here in Mecklenburg County “will operate on a limited basis.” If you’re interested, that news release includes additional details about the types of hearings and proceedings that will be ongoing this week.  Good luck finding parking, though, as downtown Charlotte will be packed.

Some law firms are closed, as well (but not us).  In fact, yesterday, in response to an email we sent to a colleague at another firm, we received the following Microsoft Outlook “out of office” message:

Due to plans for heightened security and limited traffic in out of the city during the 2012 Democratic National Convention, our office will be closed Monday September 3 through Friday September 7.  Consequently, I will be out of town on vacation during those dates.  I will have periodic access to email and voicemail during that time.  I will return to the office and normal operations will resume in our office on September 10.


In sum, Charlotte is a very different place this week – and not just because of the many members of the national media and the Democratic delegates.

Austin Powers and the $1 billion Apple Verdict

When I saw the above referenced headline on CNN’s Tech website, I had two, nearly simultaneous, reactions.  First, I had to re-read the headline.  A jury in Caifornia just awarded Apple a BILLION dollars?  With a “b”?  Yes, kids, that’s “billion.”  With a “b.”  My next, less professional, reaction was to cite a string of my favorite quotes from the movie Austin Powers.  Oh, that Dr. Evil! (We’ll wait for you here while you go watch the movie clip for yourself.).

We have been tracking the Apple-Samsung worldwide feud for months now; last November, we blogged about Apple’s victory in Australia in the so-called “tablet wars” – a federal court in Australia granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1″ in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”  Samsung faced similar troubles here in the United States.

This recent verdict was awarded in California federal court over the companies’ respective smartphones – Apple’s iPhone and Samsung’s Galaxy.  The jury determined that Samsung was guilty of “willful” violations of Apple’s patents.  It started out even bigger, but was reduced by $2.5 million when some inconsistencies surfaced in the jury’s award.  Apple had put an even bigger number “up on the board,” so to speak – $2.7 billion.  I am sure that the lawyer writing that closing had to say that figure, out loud, many times to keep it from absolutely catching in his or her throat.  Could you imagine asking a jury for that amount?  With a straight face?  But, I digress.

It is not surpristing that this award represents the largest patent infringement verdict in history.  Still to be decided is the issue of injunctions, and whether Samsung will be able to continue to sell its phone in the United States.  We’ll be watching for that decision, for sure.  In the meantime, we leave you with the quote that partially inspired this post:

Number Two: Don’t you think we should ask for *more* than a million dollars? A million dollars isn’t exactly a lot of money these days. Virtucon alone makes over 9 billion dollars a year!

Dr. Evil: Really? That’s a lot of money.


Dr. Evil: Okay then, we hold the world ransom for… One… Hundred… BILLION DOLLARS!

Happy Labor Day

Happy Labor Day from Abnormal Use! Just as we did two years ago, as a public service to you, our dear readers, we provide this link to the Department of Labor’s website on the history of Labor Day, which features the following quotation:

The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership — the American worker.

Today we also celebrate this past weekend’s return of college football, and as we noted Friday, we hope to be discussing that at least somewhat in the coming months, to the extent we can relate it to products liability litigation. Rest assured that our own Nick Farr is on the case in attempting to bring together those two topics for discussion on these pages.

Finally, we must note that in 2011 we featured the cover of the 1980’s comic book series Labor Force in our Labor Day post.  You can revisit that cover here.  Apparently, that 1980’s comic book series lasted six issues, and you can see the full cover gallery here.

Have a fun and safe day off from work, and we’ll return with our regular programming tomorrow.