Friday Links

Well, it’s Valentine’s Day, and since we’re such cynical lawyers, we do not have much to offer on such sentimental topics. If you can’t say anything nice, don’t say anything at all, we were once told by someone. Well, the least we can do is present you with the cover of Teen-Age Temptations #5, which features a curious courtroom scene. As a stern judge looks down from the bench, a woman points at a witness and tells the jury: “She’s the one! She led my son to ruin! She’s got a lavish love nest, furs and jewels! That was my lifetime savings!” Well, we certainly understand the woman’s anger, if that is the case, but we can’t understand why she, herself, is addressing the jury. Is this a civil proceeding? It must be, as we doubt she is a prosecutor. Did she bring the case pro se? If so, why is she addressing the jury directly at a point in the the proceedings when a witness is on the stand? Where is the witnesses’s lawyer in all of this? Shouldn’t that lawyer be objecting?

As you might have heard, we here at Abnormal Use – as denizens of the East Coast – have suffered through a bit of a weather problem this week. There was snow everywhere! However, we are happy to report that today all of our offices are once again open. We hope to be posting some snow pictures later.

Lawyers Helping Lawyers: Video Testimonials

Back during the recent holiday period, the South Carolina Bar sent the following announcement out to its members:

Video testimonials: Lawyers Helping Lawyers can help
The holiday season can be challenging for us all. If you find you need help with depression, substance abuse or another stress-related concern, the Lawyers Helping Lawyers program can help. Call the confidential, toll-free helpline at (866) 545-9590, or call CorpCare at (855) GET-HELP (438-4357) for up to five free hours of counseling. Sweet Lawyers using either service will remain completely anonymous. Please click here to view video testimonials and support for the Lawyers Helping Lawyers program.

This is an important issue whether or not it is the holiday season. As you may know, this is a topic that we revisit again and again on this blog, in part due to our own Stuart Mauney’s recent chairmanship of the South Carolina Bar’s HELP Task Force. In fact, as a part of the video testimonial project, Stuart recorded his own video, which you can see here.

Seventh Circuit Rejects Claim Based On Overheating Laptop Power Adapter

Okay, surely we all know not to fall asleep next to computer equipment that is plugged in and powering up, right?  No? Well, let’s talk about Ferraro v. Hewlett-Packard Co., 721 F.3d 842 (7th Cir. 2013). In that case, the Plaintiff fell asleep next to her laptop, and as she slept, she allegedly suffered injuries because the laptop’s power adapter allegedly overheated (as she slept). Of course, she sued.

In the interests of fairness, here are the specific facts as recited by the Seventh Circuit itself:

[W]hile sitting on her sofa and using her laptop, she noticed that the battery was running low. Ferraro shut down the laptop, placed it on a nearby coffee table, and plugged the laptop’s power cord into the wall. Midway along the cord is the power adapter, a brick-shaped plastic device housing a transformer, which converts AC electricity from the outlet into DC electricity used by the laptop. Ferraro propped the power adapter on the arm of her sofa, began reading a book, and fell asleep around 10:00 p.m.

At some point during the night, the power adapter slipped from the sofa’s arm, falling between the cushions. As Ferraro slept, the exposed skin of her right forearm came to rest against one of the adapter’s surfaces. It is unclear how long Ferraro’s skin was in direct contact with the adapter, but she eventually awoke with painful blisters at the point of contact.

“Slipped from the sofa’s arm,” eh? As you might expect, her claims were of the typical design defect, failure to warn, and breach of implied warranty of merchantability variety. As the court described it, the Plaintiff “alleged that the laptop was defectively designed because it ‘overheat[ed] during normal and foreseeable use’ and that it lacked ‘adequate or sufficient warnings.'” The district court granted summary judgment for the manufacturer, but the Seventh Circuit affirmed only begrudgingly (and not without great sympathy for the Plaintiff). On the design defect claim, the Seventh Circuit noted:

[L]aptops are designed precisely to be used in comfortable places, including sofas, beds, La–Z–Boys, or other places where people may nod off. By taking such a restricted view of the precise manner in which Ferraro’s harm materialized, the court sidestepped the undisputed fact that, at the time of her injury, Ferraro was using the power adapter to do just what it was designed to do: charge her laptop. Ferraro is not arguing that the power adapter overheated when she tried to use it to heat her blanket, or that it made for a poor drink coaster or paperweight; rather, she asserts that it was unreasonably dangerous when used for its intended purpose.

Well, we’re not sure that laptop chargers are designed to be placed precariously on the arm of a sofa upon which its user may ultimately fall asleep while undertaking another tasks altogether on said sofa (i.e., reading a book). The charger, of course, charges, but the user of the charger must surely consider where the charger is placed prior to using it, no? The Seventh Circuit had an answer for that, as well:

HP may be correct that Ferraro was not using the product in the precise manner intended by the manufacturer, insofar as the power adapter was designed to rest on a flat surface with ample ventilation, but this is beside the point. The appropriate inquiry for the consumer-expectations test is whether the product performed as safely as an ordinary consumer would expect when used in =an intended or reasonably foreseeable manner. The great virtue of a laptop is that it can be used on one’s lap, while sitting on a sofa, or perhaps while in bed. Indeed, we note that the Facebook page for “Using the laptop in bed” (Mission: “Public awareness of the usage of laptops in bed”) has nearly one million “Likes.” Our analysis would be no different if the power adapter had started a fire in the sofa while Ferraro was in the next room; in either case, the consumer’s use of the product would be the same. A jury could conclude that Ferraro was using the power adapter in a “reasonably foreseeable” manner when the relevant harm occurred.

(Quotations and citations omitted).

A Facebook group cited as persuasive authority? Really? How did that end up in the opinion? Take a look at that Facebook page and you’ll see the danger of citing to unofficial Facebook groups as authority. (Now, perhaps we would feel differently if the Facebook group were entitled “Precariously placing a laptop charger on the arm of a sofa while sleeping,” but we’ll cross that bridge when we come to it.).

Okay, so here’s the question: With such sympathy for the Plaintiff coming from the court, how did the defendant prevail? I mean, how does the defendant come back from that type of commentary?

A fatal appellate error, that’s how. Behold the following remarks made by the Seventh Circuit at the very beginning of its opinion in this matter:

The court concluded that Ferraro would be unable to show that the power adapter was “unreasonably dangerous,” a required element of her design defect claim. Under Illinois law, there are two alternative methods of establishing that element: the “consumer-expectations test” or the “risk-utility test.” The district court found Ferraro’s evidence insufficient to meet her burden under either one of them. On appeal, Ferraro argues that the district court erred only in concluding that she would be unable to prove unreasonable dangerousness under the consumer-expectations test. She has not challenged the district court’s determination that HP was entitled to summary judgment under the risk-utility test, nor has she appealed the district court’s dismissal of her defective warning and implied warranty claims. This puts her in an impossible bind. Under Illinois law, the risk-utility test “trumps” in design defect cases if the two methods of establishing unreasonable dangerousness yield conflicting results. Because the district court’s finding that she could not succeed under the risk-utility test furnished an independent and unchallenged ground for the decision, we affirm.

Oh, well.

Chobani’s Bad Month

As The Washington Post reported last week, the British Court of Appeal affirmed a ruling that Chobani, a United States-based company and leader among the ever-popular Greek yogurt movement, cannot label its products “Greek” because the products are actually made in America.  The lawsuit was brought by rival Greek yogurt maker Fage, which is, in fact, a Greek company.  For edification, Greek yogurt is identified by its thick and creamy texture, which results from the straining of the whey.  The British court affirmed a previous ruling that Chobani’s “Greek yogurt” label misled British consumers and any products labeled “Greek yogurt” must be made in Greece.  As a result, the court enjoined Chobani from using the “Greek yogurt” label in Britain.  One could argue this is a harsh result, especially from the country that produced William Shakespeare, who famously observed that “[a] rose by any other name would smell as sweet.”

A similar battle was fought in the United States over the “Napa Valley” designation on wine labels in the early 2000’s.  Bronco Wine Co. purchased the Napa Creek, Rutherford Vintners, and Napa Ridge labels in the 1990s and 2000.    Federal law mandates that if a wine bears the name of a geographical place, at least 75 percent of the grapes in the wine must have been grown within the geographical region.  Due to a loophole in the federal law which grandfathers and exempts pre-1986 labels from the requirement, Bronco sold these Napa-labeled wines using grapes grown elsewhere.  Some referred to Bronco’s business plan as a scourge of Napa Valley.  The problem?  Napa vinters are a strong and powerful association in California, who seek to protect the prestige and identity of Napa-produced wine.  The group successfully lobbied the California legislature to pass a law requiring wine labels that bore the name Napa or any other federally recognized viticultural area within Napa County to contain 75 percent local grapes.   After six years of legal battles, and I’m sure quite a few bottles of Cab Sav, Bronco gave up its fight to stop California from enforcing the law.  Bronco may have lost this labeling battle but is undoubtedly winning the supply and demand war, as it is the owner of the ever-popular (and economic) Two Buck Chuck.

Do brands like Hawaiian Punch, London Fog, Patagonia and Arizona Beverage Company face the same fate, or are the Bronco and Chobani results merely aberrations?  We’ll see.

In addition to Chobani’s Shakespearean troubles, Russia has blocked 5,000 Chobani yogurts from reaching American athletes participating in the 2014 Winter Olympics in Sochi.  Russian officials are saying improper paperwork is to blame, but one can only wonder given the recent tension between Russia and the United States.   Though seemingly minor compared to the countries’ recent disagreements, Yogurt-Gate has escalated into an intense political matter – the Obama administration has even intervened.  Nevertheless, at the time of the post, the Russian stance remains “Nyet.”

In the span of one month, Chobani has been stripped of its “Greek” reference in the United Kingdom and all but banned from the Olympics, the biggest sporting history in the world.   Do you want to know the true irony of Chobani’s recent woes?  It just so happens that the birthplace of the Olympics is . . . Greece.

McDonald’s Happy Meals Get New Meaning in Pittsburgh

McDonald’s Happy Meal toys are apparently going through some changes. CNN reports that a McDonald’s employee has been charged with selling heroin in Happy Meal boxes at the drive-thru of a Pittsburgh-area location. The employee allegedly instructed customers to use the phrase, “I’d like to order a toy” to signal a transaction. Thereafter, the customer would approach the drive-thru window and be handed a box containing the desired “toy.” During the arrest, officers recovered 50 bags of heroin from the employee. No word on whether these toys have been examined by the CPSC.

While this is obviously not the type of news coverage McDonald’s craves, things could have been much worse. Fortunately, there are no reports of children accidentally receiving any of these earmarked Happy Meals. Just imagine the national outrage over a child discovering a bag of heroin in lieu of a miniature character from the latest Disney movie. A horrible event, to be sure. An event for which McDonald’s should be vilified? Maybe not, but certainly the media loves this story.

The reality of the situation is that this is a story about an employee caught selling drugs while on the job. This employee is probably not the first to be caught dealing drugs at a place of employment. In fact, this story could happen almost anywhere. Certain locations simply make it more newsworthy. Had this happened at a furniture manufacturing facility, the story would be lucky to be picked up by the local news. Unfortunately for McDonald’s, nothing can happen within its walls without making the press.

We urge you to read the story, marvel over the irony of packing heroin in Happy Meal boxes, and move on. Nothing to see here. McDonald’s will continue to be McDonald’s. Happy Meals will continue to be “happy” (but, not in the drug-dealing kind of way).

Friday Links

Way, way back in 1959, Orson Welles starred in the film Compulsion, based on the Leopold and Loe murder trial.  Apparently, the courtroom scene was so powerful that it was released on vinyl – the cover of which you’ll see above. The sleeve proclaims: “Here is the dramatic courtroom scene from COMPULSION where Orson Welles, as Jonathan Will, appeals to the court to spare the lives of two accused teenage murders. The portrayal by Mr. Welles is one of the screen’s greatest moments. The words are those of one of history’s greatest criminal lawyers, Clarence Darrow.” To see the back cover, click here.

Friend of the blog Alberto Bernabe, who himself blogs at the Torts Blog, shares a photograph of a warning sign at a local skating and sled hill.  See it for yourself here.

Survivor, the band, has sued its record company!

Over at CNN, attorney Patrick Krill has an important article worthy of your attention: “Why lawyers are prone to suicide.” According to this piece, Mr. Krill is the director of the Legal Professionals Program at Hazelden Addiction Treatment Center. Please take a moment to read it. We learned about this article when we noticed that he had linked one of our own prior pieces on the subject, that being this 2012 blog post by our own Stuart Mauney.

Rest in peace, Philip Seymour Hoffman.

Florida Court Rebuffs Request For Social Media Discovery

We knew it was coming, and we’ve seen evidence of it already. Courts are beginning to limit the nature of social media discovery, chiefly in light of the fact that we live so much of our lives online that not every post or status update can be discoverable in a lawsuit. Yesterday, in Root v. Balfour Beatty Const. LLC— So.3d —-, (Fla. Ct. App. Feb. 05, 2014), the Florida Court of Appeals overturned a magistrate’s order in a negligence case that had required the Plaintiff to produce a host of materials from her Facebook account. The Plaintiff was suing on behalf of her young son who was injured in an automobile accident near a construction site (the safety of which was at issue in the proceeding). It does not appear that the Plaintiff was present at the scene of the accident, and at that time, Plaintiff’s son was being supervised by his 17 year old aunt (which led to a negligent entrustment affirmative defense).

Here’s what the defendant’s asked for:

(o.) Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff’s]’s
i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;


v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

Not surprisingly, the Plaintiff object to the discovery requests on the grounds that they were overbroad. The Court of Appeals bought this argument, noting:

[Plaintiff’s] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child’s] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff’s] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff’s] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

At the hearing before the magistrate, the party seeking discovery didn’t help itself by noting that “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Well, we as defense lawyers probably need to articulate the basis for our social media discovery requests a bit more artfully (although the magistrate judge, who apparently remarked at the hearing that “95 percent, or 99 percent of this may not be relevant,” did require production of the materials requested). The lesson: tailor social media discovery requests to require production of materials related as closely as can be to the claims and defenses in the case.

New South Carolina Court of Appeals Case on Design Defect and Failure To Warn Claims

Not too long ago, on January 2, 2014, the South Carolina Court of Appeals released its opinion in Holland v. Morbark, Inc., et al, No. 2011-199928 (S.C. Ct. App. January 2, 2014).  Centering around design defect and failure to warn claims in the summary judgment context, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Abnormal Interviews: Law Professor Rory Ryan

Four years ago today, on February 4, 2010, we here at Abnormal Use ran our very first Abnormal Interview with Law Professor Rory Ryan of the Baylor Law School in Waco, Texas.  (You can revisit that fateful first interview here.).  All these years later, we thought it would be fun to check back with Professor Ryan, so today, we continue our interview series, in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. The interview is as follows:

1.  What should attorneys practicing in federal court be aware of as we prepare to enter 2014?

This is a reputable divorce attorney in Mesa who regularly practice in federal court probably don’t need some professor telling them about the issues they encounter daily. But for the lawyers who regularly practice in state court, a few observations might be helpful.

First, as I observed in my first interview a few years ago, the pleading standards have changed. In (at least) most cases, a pleading is not sufficient if it merely restates the elements of a cause of action in terms of legal conclusions. Some level of factual specificity is required. Most academics hate this change, as reflected by the commentary. I don’t join the revolt against requiring some factual specificity. That is, I don’t think the rule announced in those cases would be a bad enacted rule. But it is curious (and dangerous) that the pleading rules were rewritten by the unelected nine outside the established procedures for amending the rules.

Second, know what you’re getting into before filing or removing based on a “substantial” federal question. The branch of federal-question jurisdiction involving state-created claims has been altered twice since 2006. Both decisions confidently announce workable tests. But when diving for the apparent pool of clarity, you’ll land in a mirage of sand. Both Grable and Gunn are both manipulable and clarify little with respect to the cases that needed clarifying. That sad, be aware that pre-Grable cases can only be argued in terms of how they fit into the modern so-called test.

Third, if you’re thinking that the answer to your federal problem is Rooker-Feldman, you’re probably wrong. Exxon v. Saudi Basic made irrelevant most lower-court cases interpreting the Rooker-Feldman doctrine. If you’re arguing Rooker-Feldman, there’s about a 99 percent chance you should be arguing preclusion.

2.  What do you think is the most underutilized federal practice tool or technique?

Permissive interlocutory appeals under 1292(b). They aren’t disfavored and provide a perfect counterbalance to the policies served by the final-judgment rule. Denied remand motions provide a good example. (The linked piece is a coauthored article, so I feel less dirty citing myself)

3.  What was the biggest surprise from the last U.S. Supreme Court term?

Last term lacked the big surprises from terms past. Some would suggest the voting-rights case was surprising. Others would probably point to the DOMA case. In the view of a procedure nerd, however, there was nothing shocking. Just the disappointment of Gunn v. Minton not taking the approach we urged in an amicus.

4. Are there any federal-courts doctrines that are underemphasized in law schools?

First of all, thanks for asking this question. [Disclaimer, I made up the question because I wanted to answer it.] The answer is “yes.” The doctrines surrounding parallel and subsequent litigation are traditionally ignored or relegated to notes that students ignore, while students spend weeks focusing on whether Congress could remove jurisdiction over abortion cases and other professor-playground areas. Take Colorado River abstention, for example. That doctrine matters.  Then, sprinkle in interjurisdictional-preclusion principles and the Anti-Injuncton Act’s relitigation exception. A student who leaves Federal Courts understanding those doctrines will, dare I say, be more equipped to help clients than one who has read nine articles on what the Supreme Court should have done 30 years ago with its appellate jurisdiction over state-law principles.

5.  What advice would you offer to lawyers practicing in the area of products liability?

Don’t ask a federal-courts professor for advice? And read the Bartlett decision from 2013; it seems kind of important.

BONUS QUESTION: You are now a professor at Baylor Law School, where you once matriculated.  How has the football program at Baylor changed during that time, and how did it achieve its successes?

They frequently throw the ball to the correct team now, and far few players spike themselves while running. Those two improvements have been important. The rest can be explained by the genius of Coach Briles and the talent pool in Texas. RGIII probably deserves honorable mention, too. When I arrived at Baylor, the basketball program was in scandal. Women’s basketball games weren’t major events. And the football team was every opponent’s choice for homecoming. Since then, women’s hoops have two national titles. The men have been to two Elite Eights. The football team has a Heisman winner, a Big 12 Championship, and a BCS appearance. Come to think of it, this success has a direct correlation with my presence. We’ll just call it causation.

BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.

Mötley Crüe Contracts to Dissolve, But Who Are They Kidding?

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.