Friday Links

Well, as you might recall, in last week’s edition of Friday Links, we mentioned that we would be focusing on legal themed album covers for a while, as it’s getting more and more difficult to unearth legally themed comic book covers. (Fear not, dear readers, we’ll return to comic book covers on Fridays in the not too distant future.). Today, we direct you to the cover of the single of “Judge, Jury, and Executioner” by Atoms for Peace, released not so long ago in 2013. You can’t get more legally themed than that, now can you? Atoms for Peace is a supergroup of sorts featuring Radiohead’s lead singer Thom Yorke and the Red Hot Chili Peppers’ bassist Flea. By the way, on this law blog, we’ve apparently mentioned Radiohead not once but six times before: here, here, here, here, here, and here. With us tossing out occasional references to such hip music, our indie street cred is surely preserved and you are estopped to argue otherwise, dear readers.

You may have heard that Quentin Tarantino’s latest script leaked onto the Internet. The Hollywood Reporter asks: “Does Quentin Tarantino have a Case Against Gawker?” Follow up: Can we still sue him for Four Rooms, or has the statute run?

Thanks again to Tim Pratt for his guest editorial on the proposed revisions to the Federal Rules of Civil Procedure. We published that yesterday, and if you missed, click here. Oh, and you can follow Tim on Twitter here.

We understand that the law of aviation is complicated and full of nuances. We understand that the federal government maintains a compelling interest in ensuring the uniformity of such regulations. We understand that there are legitimate privacy concerns about the use of drones in our airspace. But, even considering all of that, we were crestfallen to read this story: “FAA Stops Beer Drone Delivery.” Come on, FAA!

By the way, the SiouxsieLaw blog offers some initial thoughts on the purported “Cessation of Touring” agreement Motley Crüe is using to promoting its purported “Final Tour.” Says the writer: “While I admire the steps the Crüe have taken to end their band, I don’t exactly get it.  The four of them could just decide to rip up their agreement at any time and start touring again. It’s like four college girls agreeing to go on a diet together and putting it in writing.  You know eventually one of them is going to bring ice cream back to the sorority house.  And then after consuming the ice cream, they will collectively wipe their mouths with their binding agreement.” We’ll be weighing in on that fateful contract some time next week. How could we not?

Time To Make A Difference . . . . .

I have always believed in the role of a lawyer to make things better – to maintain the high quality of our judiciary, improve efficiencies in how we practice law, better prepare law students for the practice of law, more quickly instill practical skills in young lawyers, and improve diversity.  Doing these things and whatever else inspires and impassions you will bring a spring to your step.  We may not get paid for it with currency, but the reward comes from realizing “you made a difference.”  That is reward enough. This is one such time.  There are important changes being proposed to the Federal Rules of Civil Procedure.  The proposals are part of a multi-year process that will hopefully culminate in a new set of rules by 2015.  But the opportunity to participate in the process is now upon us.  This is a call to arms to ensure your voice is heard by the Committee on Rules of Practice and Procedure, which has proposed the rule changes and invited public comments.

There are many significant changes being proposed by the Committee, but they have a common theme: Let’s get back to the essential principles of Rule 1 of the Federal Rules of Civil Procedure, which proclaims that disputes should be resolved in a just, speedy, and inexpensive manner.   This is not just a cost-saving measure.  We need to get back to a point where cases are decided on the merits and, yes, tried before juries.  The reduction in the number of cases being tried does not come from a fundamental distrust of our jury system.  To the contrary, when you look at the overall outcomes, our jury system has an enviable record of success.  But that journey can be riddled with excessive costs, disruption, and delay.   When standing at the starting line of a legal dispute, the client must look not just where the merits may take the case, but also what must be endured to reach the point of resolution.   On balance, that can lead to a decision to settle a weak case on the merits rather than place the merits in the hands of the jury far down the road.  A survey conducted for the Association of Corporate Counsel found the 80 percent of general counsel and chief litigation counsel disagree with the statement:  “Outcomes are driven more by the merits of the case than by litigation costs.”

I am one of them.

One significant change proposed by the Committee will limit the scope of discovery under Rule 26.  The seemingly limitless standard of the current rule – allowing discovery of any matter relevant to the subject matter of the lawsuit, including anything that is reasonably calculated to lead to the discovery of admissible evidence – drives over-reaching discovery requests and overly-broad preservation notices.  The new proposal would limit discovery to the “claims or defenses” in the lawsuit and “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  These are important changes that will allow discovery to be scaled to each individual case. There are also some significant proposed changes to Rule 37(e) which revise and clarify the circumstances under which a party can be sanctioned for failure to preserve discoverable information.  The proposed rule would permit sanctions only if the failure to preserve was “willful or in bad faith” and caused “substantial prejudice.”  The rule would also permit courts to order lesser but undefined “curative measures” under some circumstances.   he proposed changes to Rule 37(e), though not perfect, are the right step down the path of allowing cases to be decided on the merits rather than through discovery gamesmanship.

I urge you to engage.  You surely have a perspective to share that will be of value to the Committee.  But do so quickly: the public comment period lasts only until February 15, 2014.  Your comments should be submitted to the Committee directly to its website. If you need more details and context, feel free to go to the website of Lawyers for Civil Justice, an excellent organization where I serve on the Board.

Get involved.  Make a difference.  That is our responsibility as lawyers–improving our profession and the system of justice within which we are privileged to participate.

BIOGRAPHY: Timothy Pratt is a guest author at the Abnormal Use law blog. He is the general counsel of the Boston Scientific Corporation and president of the Federation of Defense and Corporate Counsel.

Hey, Nike, Warn Me These Shoes Are Dangerous Weapons!

In the past, we here at Abnormal Use have been critical of failure to warn claims.  To all of those claims, we now apologize.  Compared to the new suit against Nike , these other claims are as monumental as Marbury v. Madison.  According to a report out of NBC News, Sirgiorgio Clardy, an Oregon-based pimp sentenced to 100 years in prison for brutally beating a john with a Nike shoe has filed suit against the company alleging that Nike failed to warn that its shoes could be used as a dangerous weapon.  Apparently, had Nike provided such a warning, Clardy may have refrained from repeatedly stomping on the face of a client.   He is seeking $100 million due to Nike’s perceived omission.

Clardy apparently got the wise idea to sue Nike based on the jury’s classification of his shoes as a “dangerous weapon” in the criminal trial in order to ensure he received a maximum sentence.   We imagine if Clardy found some way to inflict the same injuries on the victim with a plastic spoon, it would have arrived the same classification.  Thankfully for Nike’s sake, it was not a party to the criminal suit and shouldn’t be deprived of the opportunity to protect its interests civilly.

Our criticism of failure to warn claims is the notion that requiring warning labels for many of these allegations is superfluous.  Many hazards are just too obvious to necessitate a warning.  This case takes the notion to the stratosphere.  We have watched enough episodes of “The Walking Dead to know that almost any object can be used as a weapon if the assailant is creative.  When a criminal uses an object in a way no reasonable person intended, then there is no need to warn of the horrid use. We understand why manufacturers should warn of certain dangers; those warnings serve a necessary purpose.  We doubt, however, that anybody would see Clardy’s suit as analogous to those situations.

We would say that we will keep you updated as this case progresses, but we all know how it will turn out.

9/11 Scandal Surfaces, Mocks Legitimate Claims

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.

Doh! FOX Wins Big in “The Simpsons” Copyright Infringement Suit

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

Friday Links

We’ve commented before how difficult it is to find new legal themed comic book covers week after week after week for our Friday Legals posts. Well, today, we decided to be a bit different and post a legally themed album cover. This is big news. So, above, dear readers, you’ll find the Bobby Fuller Four’s I Fought The Law, released way, way back in 1966. According to the Wikipedia, the album was named for the song of the same name, which has a storied history in American popular culture:

“I Fought the Law” is a song written by Sonny Curtis of the Crickets and became popularized by a cover by the Bobby Fuller Four, which went on to become a top-ten hit for the band in 1966 and was also recorded by the Clash in 1979. The Bobby Fuller Four version of this song was ranked No. 175 on the Rolling Stone list of the 500 Greatest Songs of All Time in 2004, and the same year was named one of the 500 “Songs that Shaped Rock” by the Rock and Roll Hall of Fame.

Our favorite version, of course, is the one by The Clash, but we’ve got to give it to BFF for popularizing the song as they did.

In case you were wondering, “Yes, Emoji Death Threats Are Admissible in Court.” By the way, we here at Abnormal Use are decidedly anti-emoji.

Three years ago this week, on January 25, 2011, we published our Stella Liebeck McDonald’s Hot Coffee Case FAQ. In it, we attempted to tell the tale of that infamous case using only the original court documents and early 1990’s media coverage. Our original introduction to that piece:

First entering the public consciousness in 1994, the Stella Liebeck trial, known as the McDonald’s hot coffee case, has become such a fixture of litigation lore that many are unaware of the basic facts of the case, or even where and when it was tried. Litigated and reported upon before the rise of the Internet, much of what appears online about the case is the worst sort of unsourced speculation and conjecture. Our friends at Overlawyered have done an excellent job over the years dispelling the various myths about the case, including those that have arisen suggesting that the industry standard was to serve coffee at temperatures lower than that of McDonald’s. In an effort to publish some of the basic facts of the case, we here at Abnormal Use have created the following FAQ file regarding the matter. In so doing, we have relied solely upon the original pleadings and motions in the case and some contemporary news coverage.

So in light of this anniversary, go back and take a look at our first – and only – FAQ.

We would have liked to have observed the Google Glass traffic ticket trial. We suspect there will be similar trials in the future.

Carnival Cruise Lines Scores Victory in South Carolina

Carnival Cruise Lines recently scored a big legal victory in the South Carolina Supreme Court against several Charleston preservation and environmental groups.   The Plaintiffs claim that a 2,000 passenger Carnival cruise ship that uses Charleston as its home port is a nuisance.  The Court found that the Plaintiffs lacked standing because they were alleging a general public nuisance.

The Plaintiffs in this case alleged that the mammoth cruise ship  caused traffic congestion while loading and unloading its 2,000 passengers in downtown Charleston.  They also claimed that it created air pollution and blocked views.  Anyone who has been to downtown Charleston on a day when the cruise ship was loading up can certainly confirm its effect on traffic.  The several story high ship also blocks some views of the river.  However, the court never reached the underlying nuisance claim. Instead, the Court disposed of the case by holding that the Plaintiffs lacked standing because they were alleging a general public nuisance.  In South Carolina, as in most states, no civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others.  Rather, a plaintiff must allege a particularized harm to his or her legally protected interest.

As reported by Reuters, one of the lawyers for the Plaintiffs, Blan Holman, has said that some individual property owners are considering refiling the lawsuit as individuals.  Presumably, those property owners will attempt to allege a private nuisance for show that the cruise ship specifically interferes with the enjoyment and use of their property.

The case is Carnival Corp., et. al. v. Historic Ansborough Neighborhood Ass’n, No. 2011-197486 (S.C. Nov. 19, 2013).


Agent Orange Corn? USDA Opens Door to Genetically Modified Crops

Not too long ago, the federal government proposed eliminating restrictions on the use of corn and soybean seeds that are genetically engineered to resist a weed killer known as known as 2,4-D.   These seeds, developed by Dow AgroSciences, purport to allow farmers to use this powerful weed killer without harming the crops.    These seeds have already been cleared in Canada, but they are not yet for sale.  However, scientists and environmentalists worry that the seeds and 2,4-D could have unintended consequences.  In fact, some have dubbed the seeds “Agent Orange Corn”  in an attempt to stigmatize 2,4-D and the seeds resistant to it.

The chemical 2,4-D was, in fact, one of the main ingredients in Agent Orange.  Undoubtedy, seeds that are genetically modified to resist 2,4-D will increase its use by farmers.   But is it something that is potentially dangerous to our health or the environment?  The answer, according to a recent article, is ‘no.’  While 2,4-D was an ingredient of Agent Orange, it wasn’t what made the chemical so dangerous.  The culprit was a second herbicide ingredient known as 2,4,5-T.   According to the article:

The Environmental Protection Agency has evaluated 2,4-D numerous times under increasingly stringent risk assessment evaluations and consistently found the comparatively mild herbicide safe.  The Oregon State University and EPA-backed National Pesticide Information Center thoroughly reviewed the chemical and found it safe its proposed uses.

Environmentalists are also concerned that over herbicides can lead to the development of “superweeds,” which in turn will require more use of herbicides.  Indeed, herbicide resistance is already a problem for farmers using glyphosate (commonly known as Roundup).  However, proponents of 2,4-D claim that the product can actually decrease herbicide resistance since it will give framers another option to rotate when spraying for weeds.

While there might be more research needed to evaluate these new genetically modified seeds and the use of 2,4-D, it certainly sounds like the “Agent Orange” tag is nothing more than rhetoric.

Little League Celebration: Part of the Game or Negligent Act?

News broke last week that a California Little League coach is suing his former player over injuries he allegedly sustained in a victory celebration. According to reports, the 14-year old player scored from second base to win a game in walk-off fashion. In so doing, he took off his helmet and tossed into the air in celebration. When the helmet came back down to earth, it allegedly hit his coach, Allan Beck, tearing his Achilles’ tendon. Beck filed suit against the boy, seeking $100,000 in actual damages plus $500,000 in pain and suffering. However, Beck has indicated that he really was only interested in having the kid’s parents pony up the $20,000 he paid in medical expenses.

An interesting case from Halifax injury lawyers – McKiggan Hebert Lawyers. Had this been a case of a player intentionally throwing his helmet at the coach in anger after striking out, then this lawsuit would not have garnered so much national attention. But, this is not the case. There is no evidence of which we are aware that the boy intended anything other than to celebrate a victory. Watch baseball at any level and you will see players throw helmets in the air in much the same fashion. Until now, it has always been no harm no foul. What makes this case different, is that there allegedly was a harm. So, should the player be responsible for it? It is certainly foreseeable that someone could be injured by a falling helmet. After all, the laws of gravity dictate that what goes up must come down. It is surprising that more players or coaches haven’t been injured by helmets in these situations.

Generally, sports injury cases hinge on whether the injury occurred as a result of an act inherent to the sport. For example, a football player can’t sue an opposing player when tearing his ACL on a routine tackle. Throwing a helmet in the air doesn’t necessarily fall into that same category as a tackle; however, as mentioned, it may, too, be “part of the game.”

Regardless of the liability aspects, we are curious as to how Beck tore his Achilles’ tendon by a helmet thrown up into the air at home plate. The logistics of the injury seem to defy all odds. In describing the injury, Beck told Fox News:

I could not register right at that second, so I turned around and looked and there was a helmet laying on the ground and this young man that hit me was looking at me, stunned.

Given Beck’s own uncertainty, we have to wonder whether he sustained his injury when stepping on the helmet rather than when it fell from the heavens. Just leave it to us to speculate.

Martin Luther King Day

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of this day, our offices are closed today. As you may recall, his “I Have A Dream” Speech celebrated its fiftieth anniversary last year, so today, let’s all revisit that speech.  You can find the full text of it here.

The image above is the cover of Martin Luther King: Let Freedom Ring #1, published just last year by Campfire.

To see our past MLK Day posts, please see here, here, and here.