Dear Expert Witnesses: Please tell me you’ve actually done this before, before we do a deposition. Thanks. Sincerely, The Plaintiff.

A few years ago, we wrote about a case involving an expert who didn’t conduct testing prior to rendering his opinions, thus ensuring that he could actually get the results he wanted to support his “findings.”  Today, we feature another episode in the sitcom we’ll call “The Expert Who Wasn’t.” In Ho v. Michelin North America, Inc., No. 11-3334 (10th Cir. March 29, 2013), the plaintiff, Melinda Ho, appealed a district court order excluding her proposed tire expert and granting summary judgment to Michelin.  In 2007, Ms. Ho was injured in car accident when a car driven by Linda Lange suffered a left front tire belt and thread detachment, forcing the car into the oncoming lane of traffic and injuring Ho.  She brought a products liability case against Michelin, alleging defective design, defective manufacture, failure to warn, breach of warranty, and negligence. Thus began a comedy of errors, at least as far as the plaintiff’s experts were concerned.

Ho identified two experts to testify about the cause of the tire failure.  The first, Patrick Cassidy, a Ph.D. chemist, testified that the age of the tire was a major issue, and that age had “an effect” in the cause of the tire failure.  However, he testified that there were a number of potential causes of the failure, and that he would not testify that the age of the tire caused it to fail.

Internal monologue by the plaintiff’s attorney during deposition:  “Then WHY am I paying you?”

Cassidy also testified he had no scientific evidence that the tire was defectively manufactured and, although he identified a potential design defect, he could not testifiy that it caused the failure.  He admitted he was not a warnings expert and could not testify about that issue.  Also, not helpful to the case of the plaintiff’s attorney.

Enter expert number 2, William Woehrle.  After a Daubert hearing, was also excluded.  The Court, helpful as always, reminded us about the four, non-exclusive Daubert factors used in testing an expert’s admissibility in federal court:

1.  Whether the opinion at issue is susceptible to testing and has been subject to such testing;

2.  Whether the opinion has been subjected to peer review;

3.  Whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and

4.  Whether the theory has been accepted in the scientific community.

Here was the problem with Woehrle: he rested his opinion essentially solely on his credentials working in the tire industry for 40 years and 30 years of teaching accident investigation.  He had no experience designing tires, and the testing he did was minimal at best, and it was not the most accurate testing available for the product.  Furthermore, Woehrle’s methodology and general claims and opinions were “contrary to the generally accepted engineering literature.”  Such obstacles could not be overcome.

In the end, both of Ms. Ho’s experts were excluded by the trial court, a decision that the Tenth Circuit upheld.  Moreover, without expert testimony, the plaintiff’s case failed, and summary judgment for Michelin was affirmed.

Tax Day

Today is Tax Day. You all know what that means (especially if you have read the Wikipedia entry for “Tax Day”).  Above, you’ll find the cover of Tick: Big Tax Time Terror #1, published not so long ago in 2000. Here’s the description of the comic from Comicvine:

Yes, The Tick is way overdue for squaring his accounts with the government. The urgent demands of a super-hero life is no excuse for being late with your taxes. Share the terror as The Tick confronts the ultimate challenge, a menace beyond the power of even ten super-powered do-gooders. Chill and thrill to this cold sweat nightmare of the Tax Man!

I suppose an alternative name of the issue could have been “Battle of the Forms.”  (Whoa, that was a really bad Contracts joke.). Did you see that one of the monstrous tax forms is called the “U.S. Superhero Sidekick Excise Tax Return?

Our eyes are too poor to tell what the other forms are named.

Whatever the case, don’t forget to file your taxes today.

Friday Links

Above, you’ll find the cover of Miles Edgeworth: Ace Attorney – Investigations #4, published not so long ago in February 2013.
According to Wikipedia, Miles is Ace Attorney Phoenix Wright’s “long-time friend and first rival in the court room.” You may recall that we here at Abnormal Use mentioned Phoenix Wright way back in June of 2011. Whatever the case, here’s the plot of this issue, according to our favorite comics website, Comicvine:

Stranded in the middle of the mountains, Gumshoe and Edgeworth spend the night in a nearby hotel. The employees believe an ogre has been set free by a recent fire, and is terrorizing the guests! Is the hotel really a host for the occult, or is this just a novel scheme? Edgeworth, along with Gumshoe and Candy Holly, must uncover the truth before the entire hotel falls into ruin!

This does not sound like a typical case for any attorney. Oh, well.

Um, apparently, there is a show called “Vampire Prosecutor.” (Hat Tip: Adam Frazier).

The Minnesota legislature was doing interesting things in 1891, apparently.

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Bubba Watson Rids Golf Of Its Troubles With “The Hovercart”

Little known fact: we here at Abnormal Use are avid golfers. We are not particularly good at the sport, but we do find golf to be a great escape from reality. As much as we love the game, however, we often find ourselves aggravated with golf’s slow pace – a condition made exponentially worse when you find yourself playing out of sand, trees, and water.

Thankfully, 2012 Masters Champ Bubba Watson has heard our cries.

Watson has teamed up with hovercraft expert Chris Fitzgerald to create the “hovercart” in order to improve on the limitations of traditional golf carts. What limitations, you ask? The inability to drive in sand traps and over water hazards, of course. The hovercart travels over a bed of air allowing it to easily travel over any surface. With a footprint pressure 33 times less than the human foot, the cart could theoretically travel atop those delicate Bermuda greens. Though, something tells us golf course superintendents are going to draw the line somewhere.

The hovercart is not yet in mass production, but it should be the remedy for many of golf’s ailments. No more “cart path” only rounds on rainy days. No more embarking by foot on the treacherous trek into deep sand bunkers. No more parking 30 yards away from greens. No more walking. Sounds perfect.

We do not know whether hovercarts will ever enter the mainstream. But, anything that eliminates all of that pesky walking from getting in the way of swinging a golf club gets our support. If we could just get Watson to solve our slice, golf will be near-perfect. We can dream.

(Hat tip: The Daily Beast).

The United Airlines Frequent Flyer Miles Litigation?

The list of reasons to dislike airlines is long and familiar.  Ticket change fees, checked bag fees, bumped flights, false imprisonment on the runway, and the inevitable delays.  Now, a disgruntled United Airlines passenger is adding another item to his list: finding himself robbed of his frequent flyer miles.  A Maryland man has filed suit against United in federal court in Illinois claiming it shorted him on frequent flyer miles by using the straight line distance, rather actual distance, to calculate the credit for miles. Of course, litigation is necessary to resolve this dispute.

The lawsuit alleges that United breached its frequent flyer contract by not awarding them for miles actually flown.  According to the lawsuit, the passenger’s flight from Dulles Airport to Beijing International Airport actually measured in 7,276 miles.  However, he was awarded only 6,920 miles, which is the shortest straight line distance between the two airports.

A quick scan of the official rules for United Airlines’ frequent flyer program reveals no information as to how miles are calculated.  However, there is some vague language about being able to modify the “currently recognized” means of accumulation without notice.   When asked by The Cleveland Plain Dealer, a United spokesperson declined comment on how the miles are calculated, but we expect United will argue that the rules essentially allow them to calculate miles however they please.  United did state that it believes the lawsuit to be merit-less.

Given the low monetary value of the “missing” miles, the suit certainly appears frivolous.  It is not unreasonable for United to credit for a straight-line distance between origin and destination.  Other airlines apparently calculate miles the same way.  However, the question is, why doesn’t United just spell it out in the program rules?

In our litigious society, United should have seen this one coming from a “mile” away. Don’t sue us for our pun.

NYC Museum Accused Of Duping Visitors Into Giving Donations

The Metropolitan Museum of Art (The Met) in New York City maintains one of the best art collections in the world.  To boot, it offers admission for a donation price of your own choosing.  The minimum donation is a mere penny.  The museum does, however, suggest patrons donate $25.   Apparently, three tourists are not satisfied with their $25 donation because they didn’t read the sign closely enough to realize that it was only a “recommended” donation.  Of course, a lawsuit was necessary to rectify this reprehensible situation. Here we go again.

As you might have guessed, the class-action lawsuit accuses The Met of duping the public into believing that the $25 donation is required for admission.  In so doing, the lawsuit claims that The Met uses misleading marketing and training of cashiers to violate an 1893 New York state law mandating free admission a certain of number of days per week. Apparently, a former museum supervisor will testify on behalf of the Plaintiffs that cashiers were trained to encourage the $25 dollar donation by advising patrons of the museum’s large costs.  Also, in 2010, The Met allegedly changed its signage from “suggested” donation to “recommended” donation.  Outrageous!

The Met has, of course, denied the allegations.  Perhaps the plaintiffs can make an issue of the 1893 law.  Arguably, requiring a one cent donation for admission violates that law.  However, a Met spokesperson claims “[t]he idea that the museum is free to everyone who doesn’t wish to pay has not been in force for nearly 40 years.”  Apparently, in 1970, the New York City Department of Cultural Affairs agreed to allow a required donation for admission so long as patrons could determine what amount they wanted to pay.

Regardless of the outcome of the suit, don’t feel too bad for The Met.  It has $2.58 billion investment portfolio and most of its donations come from non-admissions related donations.

On a related note, if you ever find yourself in New York during the spring or early fall, it is well worth it to shell out your penny for admission and head up to The Met’s Roof Garden Café and Martini Bar.  Unfortunately, the beers ($8.75) aren’t as good of a deal as the admission donation.

Speaking of Social Media Discovery, A New Texas Case On Just That

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.

Friday Links

We hope you enjoyed Monday’s post – our fourth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was “North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same.”  Yes, yes, we wrote a post about a dying meme, but the best part is that the post is about the fact that the meme is dying. See how we were capitalizing on it and distancing ourselves from it, too? That’s the only way to be.

By the way, in the interests of completism, we present these links to our three past April Fool’s Day Posts:

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012)

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)

So, even a few days after this year’s April Fool’s Day, you can now go back and revisit our posts from April Fool’s Days past.  Better late than never, eh? Enjoy.

By the way, above, you’ll find the cover of Franklin Richards: April Fools #1, published by Marvel Comics not so long ago in 2009.  Franklin Richards, as you may know, is the son of Mr. Fantastic and the Invisible Woman, both of the Fantastic Four.  His relationship to April Fool’s Day remains unknown to us.

What’s in a Name? The Wharton School Trademark Lawsuit

The University of Pennsylvania (aka “Penn”) is home to the world renowned business school named the “Wharton School.”  In fact, the name “Wharton School” is more well-known than “Penn” itself, which is often confused with Penn State.   A lawsuit recently filed by Penn alleges that another company infringed on its trademark through use of the Wharton name.

Penn brought suit in federal court against the California based Wharton Business Foundation for its use of the word “Wharton.” According to its website, the Wharton Business Foundation offers business education and consulting services.  The education component is actually called the Wharton Business Foundation University.  Penn alleges that the Wharton Business Foundation has no legitimate reason to use the name “Wharton” in its brand.  The “Meet Our Team” section of the website doesn’t list anyone with the Wharton name.

The Wharton School bears its name because it was established in 1881 via a donation from Joseph Wharton.  Penn claims it has used the Wharton registered mark since 1881 for business education and since 1953 for business consultation.  The complaint, which is available on PACER, alleges that the Wharton Business Foundation’s name creates “a likelihood of confusion in the marketplace” and “a false impressing in the minds of consumers that WBF is affiliated with, endorsed or sponsored by [Penn], particularly the Wharton School.”

We’ll be keeping our eye on this suit.

On a side note, why don’t law schools have the type of “bling” that business schools have?  Having attended both law school and business school, I suspect it is because most lawyers block out all memories of their learning years.  Business school, on the other hand, is an enjoyable experience.  Also: Most business school graduates actually find jobs in their field, and thus, have money to donate.

Fighting Social Media Spoliation of Evidence

Walter Olson’s recent tweet about social media spoliation got us thinking about a familiar 2006 case on that topic.

These days, you can assume that a Plaintiff maintains some type of social media presence.  We have previously discussed the manner in which this type of evidence can be developed and explored.  However, because Plaintiffs’ attorneys have become somewhat more savvy on these issues, you may wish to warn them outright not to destroy any such evidence.

Which brings us to Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D. Puerto Rico 2006). As a 2006 case, it’s ancient in social media time. But it’s so directly on point that we still typically enclose a copy of it when we send an opposing party a social media preservation letter.

In that case, Judge Gelpi spells out precisely the point that Plaintiffs should not, and must not, delete or otherwise destroy relevant social media evidence.  The Plaintiff, a spa customer, claimed she was assaulted, and as a result, developed “intense mental anguish, feelings of shame, humiliation, depression, unworthiness, weeping and has been forced to undergo psychological treatment and therapy.” She also claimed that her job and marriage had suffered as a result of the alleged incident (which is not detailed in the court’s order).

At some point, defense counsel found the Plaintiff’s websites and notified her attorneys.  Not long thereafter, the websites vanished from the Internet, prompting the defendant to file a motion to dismiss for fraud on the court.  The district court noted:

At some point during the case, defendants learned outside of discovery that [Plaintiff] possessed several web pages depicting an active social life, and an aspiring singing and modeling career. These web pages were in direct contradiction to [Plaintiff’s] assertions of continued and ongoing mental anguish. At the time the web pages were discovered, neither plaintiffs nor plaintiffs’ counsel had knowledge that defendants had discovered the pages. Defendants were able to download and print out much of the content of the web pages and subsequently informed plaintiffs’ counsel that eliminating or altering the websites could be considered spoliation or evidence tampering. Two days after plaintiffs were alerted about defendants’ knowledge of the websites, the same were deleted in their entirety. No plausible explanation has been offered for this. Defendants now move for sanctions, to wit, that [Plaintiff’s] case be dismissed or in the alternative that her damages be eliminated or reduced.

Although the court did not dismiss the case outright, it did sanction the Plaintiff, “eliminat[ing] all possibility of introducing evidence of continuous or ongoing mental anguish on her part.”  In so doing, the court stated as follows:

In this case, [Plaintiff] did not make it known to defendants that she had an aspiring modeling or singing career. In fact, she attempted to depict the life of a recluse with no or little social interaction. Instead, [Plaintiff] led an active social life and announced this information to the world by posting it on very public internet sites. Then, immediately upon defendants’ discovery of evidence, which could be used to contradict or impeach her allegations, [Plaintiff] removed the information from the internet. This is the type of unconscionable scheme the court seeks to deter.

It doesn’t get any more clear cut than that.

Accordingly, when we become aware that a Plaintiff has a potential presence on the internet, we will serve a preservation letter on the Plaintiffs’ attorney and enclose a copy of this case.  As a practical point, it is best to capture and preserve as much of the publicly available version of the Internet site as possible, so that one can compare what may have once existed with what is later deleted.