Friday Links

Well, two weeks ago, we featured the cover of Tiger Lawyer #1, published earlier this year. We couldn’t resist revisiting the character, so above, you’ll find the cover to Tiger Lawyer #2. What a fierce litigator he is! We can’t wait to see him take a deposition. As we’ve previously noted, the series was created and written by Ryan Ferrier (whose work we previously mentioned here back in May of this year).

We here at Abnormal Use and Gallivan, White & Boyd, P.A. are pleased to announce that our very own Art Howson has been selected by his peers to receive the 2012 Tommy Thomason Award, which is given annually by the Greenville County Bar Association.  The Tommy Thomason Award is given to an attorney who displays the qualities of compassion, optimism, diplomacy, public service, justice, and integrity throughout his or her legal career.

Did you know that Lou Reed once released an album called Mistrial?

How long has it been since you’ve read the official Abnormal Use mission statement, published way, way back on January 4, 2010? Well, that’s too long!

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

The Abnormal Guide To Navigating Small Claims Court

We here at Abnormal Use are no strangers to the courtroom. Recently, we have tried a string of cases in magistrates court – South Carolina’s venue for litigating small claims. While the claims may be small (the jurisdictional limit is $7,500), the experience can produce just as many teachable moments as those in the circuit court. Accordingly, we have compiled a few tips for those navigating the perilous venue.

Prepare, then be prepared to toss it out.

Like any other trial, you fully prepare your case. Don’t think that because the claims are smaller you can just roll out of bed and be successful. You owe it to yourself and your client to treat all cases as if they are worthy of the Supreme Court.

With that said, be prepared to trash anything you planned after trial begins. In South Carolina, like many jurisdictions, there is no discovery in magistrate court. No interrogatories. No depositions. No pretrial disclosures. Most often, every witness or exhibit presented by the other side is of the “surprise” variety. You must rely on your own informal discovery, the main source of which is often your client.

When you discover that your client’s version of events may be different (and perhaps, wrong) than that of the plaintiff, you must be prepared to alter your trial strategy on the fly. This often means discarding those materials  you tirelessly prepared to counteract all of those unexpected surprises. No matter how much you prepared, something unexpected will arise. Be thankful you prepared enough to recognize it.

Manage the courtroom.

Often times, small claims court involves pro se plaintiffs. On the one hand, trying cases against pro se litigants is easier because they may not be as prepared to present their cases as seasoned lawyers. On the other, it adds a whole new set of unexpected difficulties. Judges may give pro se parties some slack, but sometimes, their generosity knows no bounds. If the pro se plaintiff answers all of your questions on cross-examination by asking you the same question, instruct her that you get to ask the questions. If someone from the peanut gallery tries to answer the questions for her, be prepared to instruct him on procedure – you may be the only person that can do it (particularly if the presiding judge is not a lawyer). Most of all, don’t be afraid to remind the judge that while the rules are relaxed, they haven’t been discarded altogether. Just because the pro se plaintiff forgot to introduce any of his evidence during trial, it does not mean that he should be allowed to hand deliver it to the jury during deliberations.

Expect the unexpected (sensing a theme here?).

The unexpected is not limited to an unknown witness or unanticipated testimony. The unexpected can also come from things unrelated to the trial itself. Don’t be surprised when you have to walk around a giant bag of pecans every time you return to your seat. When the pro se plaintiff’s father yells at the judge that he has to use the bathroom during your closing argument, just roll with it. After all, these unexpected happenings make for the best stories.

Fresh From Texas: The Print-A-Gun Project

As a former Texas resident, I can attest to the fact that Texans love their guns.  Now, with 3D printers becoming more readily available, a University of Texas at Austin student decided that the most logical thing to do is print a gun and then share the plans on the Internet.  UT law student Cody Wilson claims he is roughly three weeks away from using a 3D printer to printing a gun, the plans for which he will share online.  It seems a regulatory and legal firestorm will not be far behind.

A 3D printer is a machine that creates three-dimensional solid objects from digital designs.  It essentially combines thin strips of metal or plastic resin to make solid parts.  Once printed, the user can take the parts and combine them to make mechanical objects such as a clock.  This technology sounds pretty cool, but it obviously raises a host of issues in the realm of intellectual property.  However, these IP theft issues are nothing new.  The music industry has been facing them since the era of blank cassette tapes.

But 3D printers also present a whole knew Pandora’s Box of legal problems.  While it has been legal to manufacture firearms for your own use, it has been cost prohibitive and difficult to make anything beyond a glorified toy. Now, people such as Cody Wilson can make a copy of the parts of a gun and then with a little reassembly . . . Voila!  A high quality gun with no serial number that the government has no idea even exists.  No hassle with age restrictions or background checks.  No worries about those silly limits on what types of guns you can buy (e.g., no fully automatic weapons).  Essentially, with 3D printers, individuals can make weapons that completely eviscerate gun control laws.

It also raises interesting products liability issues.  Let’s say someone puts the design plans on the Internet for a Glock 45mm handgun.  Then say someone “prints” the gun and assembles it.   After initially functioning properly, it explodes in the shooter’s hand.  Who faces liability?  Is Glock on the hook if it was a design flaw? Is the printer manufacturer on the hook if one of the parts failed to print properly?  Is the person who uploaded the plans liable if something was amiss?  You get the idea.

This brings us back to Cody Wilson and his “print a gun” project.  Printing guns is not a new idea.  In fact, someone has already created one “printed” gun by printing some parts and combining them with other “non-printed” parts.   Wilson, on the other hand, wants to “print” the whole gun just to prove it can be done.  But then he wants to release the gun design, which has been dubbed “the wiki weapon,” so that it can be easily shared online and recreated.

Wilson told The Daily Texan that the underlying reason for the project was to send the message: “Don’t just sit around like we have been doing for hundreds of years writing a thesis about the perfect utopia or something.  Make it.”  Leave it to a Texan to envision a utopia that involves unlimited access to guns that magically appear from a printer.

Seriously, though, with all the recent controversy around gun ownership and gun laws, it is surprising that this issue has not garnered more attention.



Monster Beverage Corp. May Have Monster Litigation Problems

Monster Beverage Corp and its “Monster Energy” drinks have come under a lot of heat in recent months.  The FDA recently confirmed that it is investigating reports of five deaths and a heart attack that were possibly linked to consumption of Monster Energy.  In September, two U.S. senators sent a letter to the FDA asking it to investigate “energy drinks” and their effects on adolescents.  Now, the parents of a Maryland teenager who died after allegedly drinking two cans of Monster Energy in a 24-hour period are suing Monster.

Monster Energy is a highly caffeinated drink.  Energy drinks like it are the fastest growing segment of the soft drink market, with sales rapidly increasing over the last year.  Other brands of energy drinks include Red Bull, AMP, and Rockstar.  But Monster is clearly the market leader. Now the billion dollar question is whether Monster Energy is dangerous.  The parents of 14-year old Anais Fournier certainly believe the drinks are unreasonably so.  Their lawsuit alleges that in November of 2011 Anais went into “cardiac arrhythmia due to caffeine toxicity” after two drinking two 24-ounce cans of Monster Energy on consecutive days.  Apparently, the high caffeine level of the drink complicated an existing heart valve condition in the teen.  She was taken to the hospital but died six days later.

The lawsuit contains two main allegations.  The first is a defective design claim alleging that the drinks just contain too much caffeine.  I’m not sure this claim will fly.  The complaint alleges that two cans of Monster Energy contain 480 mg of caffeine and notes that this is the equivalent of 14 cans of Coca-Cola.  While this is true, it is somewhat misleading.  Coca-Cola is actually relatively low in caffeine in comparison to coffee or tea.  A single venti (20oz) cup of regular coffee from Starbucks contains 415mg of caffeine.  As such, I’m not sure you could say that a 24oz can of Monster Energy with 240mg of caffeine poses an unreasonable risk.

The second allegation is a failure to warn claim.  Basically, the plaintiffs claim that Monster should have known its drinks contained dangerous levels of caffeine and placed warnings on the cans.  This claim seems a little more viable at first glance.  However, the cans already contain the following warning: “Limit 3 cans per day.  Not recommended for children, pregnant women, or people sensitive to caffeine.”

It is unclear, however, whether this warning was on the cans in November of 2011 when the plaintiffs’ daughter consumed the Monster Energy.

Regardless of how this plays out, the caffeine scare may have already taken its toll on Monster.  Monster’s stock hit a high of $79 per share in June, but has recently plummeted to around $45 per share.

Post-Electoral Products Liability Litigation As A Political Weapon

Politics is messy business, especially in presidential elections. And as Bush v. Gore taught us in 2000, the messiness of presidential politics can go on even after the election is over. This is especially true when states like Florida prove they can’t get their acts together . This past election cycle, I was shocked the election seemed decided by about 8 pm. This was approximately the time that Fox News’ reporters showed visible signs of clinical depression, which I thought was funny. Those guys need a healthy dose of keep calm and carry on.

In any event, I found myself on Election Night contemplating the intersection between messy presidential politics and products liability litigation. And where, you may be asking, is that intersection? Well, Bush v. Gore showed us that presidential campaigns are not above using post-electoral litigation as a strategic political tool. But why should politicians have all the fun? Why can’t average joes like myself – who may or may not be acting as political operatives – file post-electoral complaints against the manufacturers of voting machines or the writers of software code used in voting machines, claiming that my vote was not counted, and more broadly, that the machines failed to accurately capture the votes of my fellow Americans? The downside of this litigation strategy is that it wouldn’t undo the results of the election. The upside to this litigation is that, assuming the hypothetical plaintiff could reach the discovery phase of the suit, the resulting fishing expedition could find some voting irregularity that could be used to compromise the winning candidate’s legitimacy.

This is not so far-fetched. Many elections are decided by slim margins. Given that votes are now taken by machines, there will be a fail-rate associated with the use of those machines. In elections with slim margins, the fail-rate associated with a particular model of voting machine may cover the spread, which could establish that the failure to properly account for the vote was outcome determinative. This tees up a scenario of explosive litigation with a nasty propensity for undermining confidence in the electoral system.

So why haven’t we seen this yet? I have no idea. My brief amount of research has not found any claims to this effect. But I have to believe it’s only a matter of time.

Friday Links

It’s our first edition of “Friday Links” after this year’s fateful Election Day, so we figured, what better comic book cover to feature than Superman #706, published just last year in 2011? Are you sick of maps yet? Well, it’s neat, isn’t it, even if Superman’s expression appears to be a bit creepy under the circumstances? (It’s not a disturbing as those bizarre 3D graphics that CNN always uses, though.). Oh, well.

If you’re a South Carolina taxpayer, or if you have been in the past, make sure you visit this page regarding options available following the cyberattack on the South Carolina Department of Revenue.

No, we haven’t yet offered our opinions on George Lucas’ sale of the Star Wars franchise.  But we will.  Trust  us, we’re just biding our time. In the meantime, you should revisit our 2011 Star Wars April Fool’s Day joke. Those were the days, weren’t they?

We lament the passing of famed University of Texas football coach Darrell K. Royal.  Our friend Ryan Steans put it best: “It’s kind of hard to imagine living a better life than that guy.” Rest in peace, Coach.

This past May, our own Nick Farr reviewed the pilot episode of USA’s “Common Law,” a television series about two bickering police officers who are ordered to couples therapy.  Really, we’re not sure why it was called “Common Law,” as it was about cops, not judges. Whatever the case, the show has now been canceled.

Post-Election Day Thoughts

Election day is (finally) over, but we noticed a few interesting stories and issues on Tuesday worthy comment and reflection.  That’s right: we are not ready to end the madness.  We promise we won’t make you watch another television ad, however.

The Intersection of Technology and Voting

We all heard stories post-Sandy of how the election might be affected by East Coast power outages and transportation difficulties.  The affected states tried to prepare for those contingencies.  But what if you weren’t expecting it?  A college professor of mine posted on a certain social networking site that when he was checking in at his polling place, the laptop used by the volunteer crashed.  After rebooting, it would not print him out a ticket to vote, because the computer thought he had already voted (because he had already been checked in right before the crash).  Eventually, my former professor was allowed to vote, but the event raised an interesting issue about the intersection of technology/products and election law.  We are now extremely dependent on technology to exercise one of our fundamental rights as Americans.  I wonder what my professor’s remedy would have been if the computer – and not any mistake he made about a polling location, etc. – was responsible for him not being able to vote. A products case, perhaps?

On cell phone cameras and ballots

The Wall Street Journal Law Blog had an interesting post about posting pictures of your ballot.  I saw several photos yesterday and also wondered about this issue.  As I suspected, it is illegal in many states to photograph one’s ballot. Why?  Why is it illegal to take, let alone post, pictures of completed ballots?  Under Wisconsin law, it constitutes election fraud, a Class I felony.

We’d love to hear some arguments against – and for – these laws.

Inauguration day considerations

Finally, The WSJ Blog also featured a very interesting post on the effect of Inauguration Day, January 20, falling on a Sunday.  I assumed (wrongly) that the Inauguration would simply take place on the following Monday.  Well, apparently not.  The successful candidate will simply take the oath of office privately on Sunday, and then in the public eye on Monday.  This will not, of course, be the first time that a president elect will take the oath more than once.  Recall that Justice Roberts mixed up some of the wording with President Obama during his 2009 Inauguration, and they had to re-do it behind the scenes again later –  just to ensure the president had taken the actual oath.

California Burglar Sues Man He Shot In The Face

Having a burglar break into your home and hold you at gunpoint must be a horrific experience.  Getting shot in the face by the burglar is unimaginable.  Getting sued by the burglar after he shoots you in the face and you return fire from inside your own home?  Well, apparently, that’s just the state of the legal system.  It’s exactly what appears to have happened to one elderly California man.

Ninety year old Jay Leone was at his home in Greenbrae, California, when the plaintiff, 31-year-old Samuel Cutrufelli, allegedly broke into his home in broad daylight.  The plaintiff kicked in his door and held Mr. Leone at gunpoint while he searched for valuables throughout the home.  Unbeknownst to the plaintiff, Mr. Leone had a revolver stashed in his bathroom for personal protection.  Mr. Leone retrieved the revolver after he persuaded the plaintiff to let him use the bathroom.  When Mr. Leone emerged with the gun, the plaintiff shot him in the jaw.  Mr. Leone then fired three shots at the plaintiff, before the plaintiff grabbed the gun from him and put the gun to Mr. Leone’s head.  The plaintiff pulled the trigger, but luckily for Mr. Leone the gun was out of bullets.  The plaintiff then fled the scene.

Police later found the plaintiff in a car close to Mr. Leone’s home and arrested him.  The plaintiff now faces, among other things, an attempted murder charge in connection with the shooting.  Mr. Leone has not been charged with any criminal wrongdoing.

Well, now it is Mr. Cutrufelli who suing Mr. Leone.  Yes, you read that right.  The burglar that is facing attempted murder charges is suing the man he shot in the face.  The plaintiff claims Mr. Leone “negligently” shot him.  He is seeking damages for “great bodily injury, and other financial damage, including loss of Mr. Cutrufelli’s home, and also the dissolution of Mr. Cutrufelli’s marriage.”  Apparently, the lawsuit was filed by the plaintiff’s criminal defense attorney.

It is very doubtful that this case will make it very far.   However, if the facts presently known are all true, the mere fact that a licensed attorney filed the lawsuit in the first place is ridiculous.  To Mr. Leone’s credit, he seems to be taking the suit it in stride.  He told the Marin Independent Journal, “He’s the one who busted my door in. I’ll just countersue him then. That’s what I’ll need to do.”

Election Day 2012

Well, it’s Election Day.  It’s finally arrived after a seemingly permanent campaign. Sigh. Don’t worry; we’re not going to make any endorsements or anything, nor are we going to dwell upon the nature of this year’s election. We’re products liability lawyers, not pundits! But, as we are inundated today with maps, graphs, and polls, we thought the comic book cover above, that of Captain America #250, might be appropriate. Yes, it was published a while back, in 1980, itself a presidential election year.

“The People’s Choice! Captain America for President!” proclaims the campaign button on its cover. Spoiler alert: He didn’t win (at least not in the main Marvel Universe).  But that’s been remedied in a far more recent 2012 storyline, apparently, as recent news reports suggest Captain American won as a write-in candidate in Marvel’s Ultimates universe. Apparently, the writers of Captain America comic books really, really like comic book superhero presidents.  Oh, well.

Click here for our Election Day 2010 post, and of course, you can revisit our previous Captain America related posts, please see here, here, here, and here.

NBA, Player on Plaintiff’s End of Product Liability Suit

NBA teams pay their players a lot of money. Last season, the league minimum salary was $490,180. With so much invested, team owners don’t like injuries to their star players. Especially when those injuries were caused by an allegedly defective product.

According to a report from The Sacramento Bee, the Sacramento Kings and Guard/Forward Francisco Garcia have settled their claims against Italian exercise ball manufacturer, Ledraplastic S.p.a. Apparently, the federal suit was the result of a fractured forearm sustained by Garcia when the exercise ball on which he was standing exploded while he was lifting two 90-pound dumbbells. The accident occurred in October 2009, shortly after Garcia had signed a 5-year, $29.6 million contract extension. Garcia missed the first four months of the following season recovering from his injuries. The team sought to recover the $4 million in salary they had to pay while their player sat on the bench recovering. While the financial terms of the agreement are confidential, the attorney for Garcia and the Kings indicated the settlement was “extremely beneficial” to his clients. When the plaintiffs are a well-compensated, finely tuned machine and his employer, we expect the attorney’s description was accurate.

Even though Garcia and the Kings’ damages may have been substantial, it would have been interesting to see how a jury would have handled the product liability claims against Ledraplastic. The basis for the plaintiffs’ claims is that the exercise balls warrant that they can withstand 600 pounds and claim to be “burst resistant.” In product testing during the litigation, the exercise balls were shown to burst around the 400 pound mark.

As an initial matter, the manufacturer’s claim to be “burst resistant” is not necessarily a fallacy. “Burst resistant” does not equate to “burst proof.” The ball undoubtedly was resisting explosion at all points up to 400 pounds. Therefore, the claim is accurate, to a degree. Unfortunately, the problems rest with the weight resistance points warranted by the manufacturer.

The fact that the ball ruptured at a point less than 600 pounds is not necessarily a deal breaker. For example, if the ball was being used in a manner outside its intended purpose (i.e. lifting weights while standing on the ball, perhaps), then the original resistance points may be legitimately compromised. However, it does not appear that Ledraplastic ever warned that weights should not be used in conjunction with the exercise ball – a warning that could be helpful when using exercise equipment. In fact, as part of the settlement, the manufacturer has circulated a letter among its distributors advising them that the ball should only be used with body weight.

Unfortunately for Ledraplastic, it had to learn about the need for this extra warning at the hands of a wealthy athlete and an NBA franchise.