Up In Smoke: Eleventh Circuit Affirms Dismissal of Smoking Cases

Big Tobacco scored a big victory when the Eleventh Circuit upheld the dismissal of nearly 750 Plaintiffs’ cases because of defects in the complaint.  See 4432 Individual Tobacco Plaintiffs v. Various Tobacco Companies, Liggett Group, LLC, & Vector Group, Ltd (11th Cir. September 10, 2014). The defect stemmed from the fact that the law firm handling the case filed personal injury complaints on behalf of deceased smokers and deceased family members.  Of course, a deceased person cannot a maintain claim for personal injury.

The dismissed cases were brought in 2008 as part of 4,432 claims filed by a Jacksonville law firm.  The cases were filed individually after the Florida Supreme Court disbanded a state class action lawsuit and gave the plaintiffs one year to file individually.  The firm apparently did not have the time or the resources necessary to contact all of the class members but filed suits on their behalf to meet the deadline. In 2012, it was discovered that 588 of the smokers who had suits filed in their name were now deceased and 160 loss of consortium claims had been filed on behalf of dead family members.   The district court dismissed the cases and denied  leave to amend.  The court’s rationale for denying leave to amend was that the problems would have been avoided if the claims had been properly vetted in the first place.

The Eleventh Circuit upheld the decision not allow leave to amend the complaint.  The court refused to take mercy on the Plaintiff’s firm, who on appeal argued that the mistakes were the result of “unique logistical difficulties” involved in handling so many cases.   In reaching its conclusion, the court noted:

The solution to managing  these types of mass actions is surely not that the standard of care diminishes as the  number of cases grows. If we were to hold that plaintiffs’ counsel are entitled to substitution solely on account of the large volume of cases they filed, we would  invite the same result in every mass tort action.

Since the deadline to file is long gone, these cases are up in smoke.

Iowa Federal Court Issues Sanctions For Unnecessary Deposition Objections

One of the most difficult deposition and trial skills I had to learn as a young lawyer in Highland IN, personal injury law firm is the art of the objection. While some may posit the old maxim, “You’ll know it when you hear it,” in practice, knowing the proper time to object to opposing counsel’s question is much more difficult. Over time, every lawyer develops his or her own method of practice. Some lawyers can sit all day through a tiresome deposition without the hint of an objection. Others choose to object, usually to the form of the question, every time opposing counsel opens his or her mouth. Neither approach is sound as not every question is perfect or objectionable. Nonetheless, many lawyers seem to use the objection as a means to prove one’s worth.

Recently, a lawyer appearing before U.S. District Court Judge Mark Bennett in the Northern District of Iowa learned the perils of abusing the objection. In fact, the lawyer in question was sanctioned in a most unusual way. During trial in the matter of Security National Bank v. Abbott Laboratories, No. 11-cv-4017 (N.D. Iowa 2014), a product liability case arising out of an allegedly defective infant formula, Judge Bennett issued a sua sponte order for defense counsel to show cause as to why she should not be sanctioned for the “serious pattern of obstructive conduct” she displayed in defending depositions. Specifically, Judge Bennett questioned the lawyer’s use of hundreds of form objections with no apparent basis. Following trial, a supplemental order was entered, directing counsel to address three issues: 1) the excessive use of “form” objections; 2) numerous attempts to coach witnesses via objection; and 3) ubiquitous interruptions and attempts to clarify questions posed by opposing counsel. In reviewing the depositions at issue, Judge Bennett found that the lawyer’s form objections – often with no stated basis – were found on 50 percent of the transcript pages. To get a lawyer you can view here for more info. While he did not favor form objections with no stated basis, it was the result of the objections – witness coaching and excessive interruption – that drew Judge Bennett’s ire. The objections were said to be used to induce clarification from the deponent, and in many instances, actually coached the witness to give a particular, substantive answer. The attorney objected so many times that her name was found, on average, three times per page of deposition transcript. Based on the record, Judge Bennett found that:

By interposing many unnecessary comments, clarifications, and objections, Counsel impeded, delayed, and frustrated the fair examination of witnesses during the depositions Counsel defended.

Before you go ahead with the case make sure that you have a like Attorney Douglas Miranda fights domestic violence charges to help their client. Rather than fine the lawyer, Judge Nelson ordered her to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court. Now, there’s a video which was brought into notice by https://thelawofficeofbrianjones.com/ it is a must-see for all young lawyers. This opinion shouldn’t scare all who may appear in an Iowa federal court in the near future. Judge Bennett was quick to note that a handful of improper objections or comments wouldn’t lead to this type of judicial intervention. However, lawyers should think twice before talking more than their clients at their depositions. If an objection really needs to be made, then you will in fact “know it when you hear it.” Otherwise, the objection is too often just filler.

Friday Links

Above, you’ll find the cover of Action Comics #286, published way, way back in 1962. As you can see, Superman stands before “The Jury of Super-Enemies,” a body composed of Saturn Queen, Cosmic King, Brainiac, Lightning Lord, Electro, and of course, Lex Luthor. We’re thinking that perhaps Supes should have simply waived his right to a jury trial if these villains were to serve as the fact finders. In fact, imagine how bad the venire panel must have been for old Supes to end up with this lot serving as the jurors.

Okay, so footnote 7 of this recent Texas Supreme Court case cites to and quotes The Big Lebowski. We’re not entirely certain what to think about that, but now we’re anxiously awaiting a Miller’s Crossing citation. (Hat Tip: Paul Szoldra at Business Insider).

The music site Loudwire offers an article entitled “10 Infamous Rock Lawsuits.”


You might recall that back in April of 2011 we interviewed Brian Dale Allen Strouse of The Lawsuits, a Philadelphia rock band. Well, The Lawsuits are releasing a new EP, Tumbled, later this month. (That’s the cover depicted above.). For more information, see here.

A reader directs us to “Understanding North Carolina’s Proposed Constitutional Amendment Allowing Non-Jury Felony Trials” by Jeffrey B. Welty and Komal K. Patel. If you’re in North Carolina, you may want to read it before election day.

Our favorite recent tweet must be this one:

September 11

Thirteen years after that awful, awful day, we pause to reflect upon the tragic loss we all experienced.

Over the years, on this anniversary, we’ve attempted to offer some thoughts on what happened. Of course, it’s always difficult to do, both because of the magnitude of our collective sorrow and the fact that there simply are no words which can truly capture our feelings about the effects of a national tragedy. On the tenth anniversary, we briefly noted:

There is no denying that we are a different country today than we were on September 10, 2001.  And yet we are also the same country – a place where we have the freedom to disagree with anyone about any subject, openly and in public.  Blogs like ours are not possible in many of the world’s countries, and we are thankful for the opportunity to express our opinions, and  read the opinions of others, in a forum that sparks lively and at times heated conversations. We now have to take off our shoes before passing through metal detectors at the airport, and the purse searches at the ballpark are a little more thorough than they used to be.  But we are still free to disagree with one another and, for that matter, our government.  In that way, the attacks failed miserably to achieve their purpose. But on this day, on this anniversary of one of the greatest tragedies this nation has ever seen, we pause to reflect upon those who lost their lives that day and those who heroically came to the scene to respond to what had happened.  They and their families remain in our thoughts and prayers.

Last year, on the twelfth anniversary, we prepared a lengthier post in which we recalled our own experiences in law school that day and wondered what it must have been like to be practicing law on that day.

Today, as we have done before, we turn to the words of Baylor School of Law professor Gerald Powell who, on at a commencement ceremony on February 9, 2002, shared these thoughts:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

As we make it through this difficult day, we’ll do our best and try to keep Professor Powell’s words in mind.

Abnormal Interviews: Lawyer and X-Files Actor Zachary Ansley


Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and makers of legal-themed pop culture. For the latest installment, we turn to lawyer Zachary Ansley.  Before becoming an attorney, Ansley had a varied and successful career in film and television. Twenty-one years ago today, on September 10, 1993, he appeared as alien abductee Billy Miles in the pilot episode of “The X-Files.” Can you believe that the first episode of “The X-Files” aired 21 years ago? That character became central to the conspiracy mythology in “The X-Files,” and Ansley returned to the show on four more occasions. Over the course of his run on the series, Billy Miles was abducted by aliens at least twice, killed at least twice, and transformed into a formidable alien super soldier in pursuit of Agent Scully and her  baby. To refresh your recollection, here’s how the The X-Files Wiki begins its very detailed entry on Miles:

Billy Miles was the son of Detective Miles and a resident of Bellefleur, Oregon. He claimed to have been under temporary alien control several times in his life. After one final abduction, Miles was genetically altered into a human/alien hybrid, and became a super-soldier.

For good measure, here’s how The X-Files Wiki describes the super-soldiers on the series:

Super-soldiers are human replacements that look human but are actually a type of alien. Fearless and virtually unstoppable, these aliens are not directed by anyone and are answerable to no-one except their own biological imperative to survive. They want to knock out any and all attempts by humans to survive the alien colonization of Earth and were created to aid in the extraterrestrial repopulation of the planet. Their collective name, “super-soldiers,” derives from the aliens themselves, but was often used cynically by humans.

Ansley is now a shareholder at Owen Bird in Vancouver. He practices in the areas of civil litigation, employment law, intellectual property and other areas.

To commemorate the anniversary of the pilot’s airing, we sought an interview with Mr. Ansley, who kindly granted our request. Without further ado, the interview is as follows.

JIM DEDMAN: You appeared as Billy Miles in five episodes of “The X-Files.” The first being the pilot, which aired 21 years ago this month. How did you first get involved with the show and get that part?

ZACHARY ANSLEY: I was an actor in Vancouver. I was a child actor in Vancouver, actually, and I was part of the Vancouver Youth Theatre from the age of 12 on, and so what happened was, when the film and television industry started to grow in Vancouver, the Vancouver Youth Theatre was there to sort of feed it with young talent. So casting directors would come to the Vancouver Youth Theatre, and so that’s how I became involved in the industry. And prior to “The X-Files,” I had done some pretty high level, I guess, or high exposure stuff in Canada. I had done a few movies of the week, I had done a few Canadian feature films, so I was known to casting directors in Vancouver at that time, and when “The X-Files” pilot came along, I auditioned and was fortunate enough to get the roll.

JD: Now, [X-Files creator] Chris Carter did an interview about a year ago with an “X-Files” fan site, and they asked him actually one of the questions I was going to ask you, which is if there is a favorite moment or memory from the filming of the pilot that sticks out in your memory. One of his was your audition, and so I wanted to ask you that same question. What is it about filming the pilot that sticks out in your mind these years later?

ZA:  . . . I had never heard that one of Chris Carter’s fondest memories was my audition. That’s very kind of him to say that.

[T]he most exciting part about doing that pilot was just getting the part, which was kind of before I went to acting school in New York City. It was actually September of ’93 that I started acting school in New York City, I believe. That was at Circle in the Square theatre school in New York, so this was before then, obviously, and I was hungry for work, and I was just happy to be part of something that could potentially grow into something a lot bigger than a pilot. And it eventually did, so that was very exciting. In terms of the actual filming itself, I do remember Chris, sort of in his quiet and confident way, sort of tending to the projects, reviewing each unit that was filmed, and reviewing playbacks and making sure that the images and the scenes aligned with his vision, and I think, you know, I didn’t have a lot of interaction with Chris while we were filming outside of after the audition, but I do recall him being there and attending to the details and making sure, as they say, that it aligned with his visions, and that they got it right, and that we were getting it right. So, I remember that, and I remember also working with Gillian Anderson and David Duchovny, and that was and they were very easy to work with and stayed very professional. And also you could tell that they were also trying to figure out how to do this right and what was the right sort of tone for the show and their characters and their relationship, and you know, you kind of got a sense that these people were working very hard to make this work, and so that was very exciting to just be a part of that.

JD: Did you have any idea at that time that it would become this huge cultural phenomenon?

ZA: I didn’t, but at the same time, not that I thought that it wasn’t going to be that, either. I mean, it was just so fresh and new to me that I was just excited to be a part of it, and I was certainly hopeful that it would become something much bigger, and I was just sort of focusing on that moment and not letting myself think too much into the future. And, of course, my character at that time didn’t have a future with the show, so maybe that played into sort of my ability to focus on the pilot episode itself.

JD: Well, that anticipates my next question, which is, seven years later, you come back to the show starting with the Season 7 finale. How did that come to be?

ZA: Well, it was very interesting. I certainly didn’t expect it. It was a pleasant surprise. At that time, of course, “The X-Files” had moved the filming . . . from Vancouver back down to Los Angeles. It started filming in Vancouver, and then after a certain amount of seasons, I think it was 6, moved down to Los Angeles, so I they called me, and I didn’t expect it at that time. I was finishing my last year of undergrad at the University of British Columbia. I remember it was sort of final exam time that I got the call that they wanted to reprise the character and bring it back, and the reason they were going to bring it back was because David Duchovny’s character was maybe going to be leaving the show, and they wanted to sort of bring it back full circle to the original “X-File,” which of course, Billy Miles was a part of. So, I was very excited to get that call and happy to come back to the show.


JD: And the episodes you were in aren’t just regular episodes of the show; they were big mythology episodes with the alien abductions, and of course, Fox Molder gets abducted, and Scully gets pregnant. How did it feel to be a part of those sort of big picture episodes of the series?

ZA: Well, going back to the show after that length of time, when it already was a cult phenomenon big hit, at that point, was really special. I mean, it was just an honor to be back, and I felt very fortunate to be doing it and to be reprising the role of Billy Miles, and especially because he becomes abducted again, and he comes back with these special powers that are sort of similar to like the character in Terminator 2 where he can sort of regenerate himself in different shapes, and they can try to kill him in trash compactors and elevators shafts, but he keeps coming back to life. So, I mean, that added a whole other dimension to my character that was just a lot of fun to play, and of course, was fun to be a part of those mythological episodes near the end.

JD: And looking back in 2014, what would you say the legacy of the show is?

ZA: Well, I mean, the legacy of the show, I think, is just how far it sort of popularized the science fiction and conspiracy kind of episodic television – how far it brought that particular component into pop culture that I don’t think was there. Obviously, it was there, partially, but it certainly wasn’t there to the extent that it was after “The X-Files,” and I think it’s obviously generated a lot of buzz, and shows have attempted to repeat that success. But I think it was, you know, the pioneer in how far it was sort of pushing that conspiracy theory, “someone is watching you out there” genre that I don’t recall being there as much as when I was younger.

JD: How did you go from acting to the legal profession?

ZA: Well, that’s a good question. I mean, I get asked that a lot when people ask me what I do now or what I used to do or find out that I used to act. It didn’t seem like such a stretch to me. . . . I didn’t welcome the thought of always auditioning for your next role, even when you had work, so there was a lack of stability there, a lack of predictability there, when you’re an actor, and you kind of have to embrace that, because it’s just the nature of the beast when you’re an actor, you know, until you’re superstar and you get offered parts all the time. . . .  [I]t kind of wears on you after some time, and I had been an actor, like I said, since I was a child, and I had been doing it for twenty years, actually, before I stopped and went to law school. I did that through undergrad.  . .  . [T]hat lack of control over your own career path kind of began to wear on me a bit, and I started to look for other outlets to engage . . . other interests, such as fundamental legal interests of values in society and how those are reflected in our laws and how those are applied and policy and those kind of things. So, I found myself sort of in my undergrad sort of slowly drifting more [toward] political science and economics themes or interests and a little bit away from the pop culture Hollywood greatest blockbuster hit interest that I had more when I was younger.

JD: Do you think that the acting profession and the legal profession particularly litigation requires similar skill sets?

ZA: I do, certainly. I mean, I don’t think they are identical, but there is more overlap than people might appreciate just on first blush. I think that one of the things that all actors have to do in any given theme and under any arch of any part is follow through on an objective. And that is when you’re in a scene, and you’re playing that scene, you want something out of the other person or out of the event, and everything you do is kind of funneled through that objective, whether you go about it directly, whether you go about it indirectly, whether you go about it in a covert way. As a lawyer, you also follow objectives. You have your instructions from your client, you have an objective when you’re in court, so in that sense, it’s similar. Also, of course, when you’re a litigator, and you’re standing in front of a judge or a jury – I haven’t done a jury trial yet, and I think they are less common in Canada than in the United States – but if I was so fortunate to be in front of a jury, you have to communicate, you have to connect, you have to appreciate how your argument, how your evidence, is landing, with the judge or your audience. So, in that sense, that is very analogous to an actor being on stage or having a sense of the audience behind the camera. You have to have that sense as to how this is registering with your audience. . . . [A]s an artist and an actor, you are maybe, and this is more philosophical, if you permit me, but I think you’re a little bit more on the outside of things, kind of commenting on how things are happening, and whereas a lawyer, you kind of feel closer to sort of the center of deals and policy and the messy stuff . . . . So, as an actor, you’re looking at it, observing and commenting on it, whereas a lawyer, I think, you’re a little bit closer to the nub of it.

JD: In 1993, you played Robert De Niro’s son in This Boy’s Life. You mentioned a moment ago that in the acting profession you got some life education yourself. What did you learn about acting and life from Robert De Niro at that time?

ZA: Well, he, you know, he’s one of the superstars not only in acting, but he’s like an actor’s actor, if you will.  . . . I was really fortunate. I just watched him, how he was a constant professional, he came in prepared, he was able to, he knew his lines cold, he was able to drift off outside of the script and play whatever came to him. He had a very strong idea of who his character was and wanted to achieve, and it was really impressive to watch him just come on to the set. He was there to do a job, and he was able to carry on long after the scene ended. He was able to sort of carry on in that character and keep ad-libbing . . . . [S]ometimes the director would just let the camera roll and see what came out. So, it was, as an actor who at that point was going on to acting school, I was like a sponge, just kind of watching hanging out when I wasn’t in the scene myself and just see what things I could learn from him.

JD: You were in a holiday movie with John Schneider and Tom Wopat that was not a Dukes of Hazard related project. How did that come to be?

ZA: Well, that was the movie of the week that was shooting in Vancouver. It was “Christmas Comes To Willow Creek,” I believe that’s the name of it, and I’m not sure the background of it, or how it came to be, but I imagine that it was a vehicle for Mr. Schneider and Wopat to reprise their role of brothers even though they weren’t the “Dukes of Hazard” brothers but they were brothers in the movie. . . . [A]gain, I was fortunate enough to be a young actor in Vancouver that was sort of – that was kinda of my – I had a series of parts where I was the angry, young man and it was all about the relationship with the father, and I would always rebel against my father, and Tom Wopat was my father, and he kind of handcuffed me to the truck and took me on this journey we were going. I think we were going to Alaska, and so he handcuffed me to this truck, so I was stuck in the truck, and I didn’t want to be there. And so that was the feature of our relationship throughout that movie, and of course, it’s a Christmas movie, so it all ended well. That was a ton of fun. I would say I have very fond memories of working with those guys. And I was in high school then in Vancouver, so that was a nice break from high school and going out and hanging around a set for four weeks with those guys was a lot of fun.

JD: Getting back to “The X-Files,” of the episodes in which you appeared, which one was your favorite, and why?

ZA: Well, I think that the pilot was, just because of what it went on to become, and for those reasons that I gave earlier on that, there was a real buzz on the set initially in the pilot, and I played an abductee who abducts others and offers them to the light above. It was a complicated character, so I mean, he kind of comes out of that and is interviewed at the end so there’s levels of a sense of guilt of what he had done, a level of anger of you know of being abducted, of course, and a sense of vulnerability of how his body and being was taken over so that was kind of a complex, and it’s obvious that I didn’t have personal experience with, but I could relate to all those different elements of it and try to put it together in the character. So it was probably the pilot episode, although, of course, I was very happy to go back and play this, they say the Terminator 2 role, where I can’t be killed and can take all sorts of different shapes.

JD: Well when you came back and became the sort of transformed alien assassin, after that one scene in the “Deadalive” episode, were you ever able to eat strawberry jam again?

ZA: [Laughter] . . .  I didn’t take that home with me, so to speak.

Abnormal Interviews: Trial By Jury and Mistrial Movie Director Heywood Gould


Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and makers of legal-themed pop culture. For the latest installment, we turn to Heywood Gould, director and co-writer of the film Trial by Jury, which was released way, way back in 1994. Gould is well known in Hollywood, having directed Mistrial and written Cocktail. Any film depicting jury tampering at the hands of a mob boss captivates our attention. Further, today marks the 20th anniversary of the film’s release to theaters on September 9, 1994. Nothing slips past us. To commemorate this special event, we requested that Mr. Gould agree to an interview with us about the making of the film, and he was kind enough to grant that request. Without further ado, the interview is as follows.

NICK FARR: Looking back 20 years now, what are your thoughts on Trial By Jury and how it was received as a legal drama?

HEYWOOD GOULD: Well, I mean, it was received harshly. And I think the main reason was because of the premise of the movie being that a racketeer can buy himself or can buy a jury and corrupt a jury. People did not want to think that could happen . . . The movie is based on a real life occurrence in which [John] Gotti corrupted a jury in one of his jury trials which led to a mistrial. That’s how he got the name “Teflon Don.” One of the reasons in this case was because he had corrupted the jury. So people don’t want to entertain the idea that this can happen. So there was a lot of disbelief expressed that this could ever happen here and so forth and so on. The movie itself – the actual movie got a great response. But people felt – people were upset. They were disturbed by the idea that this could happen.

NF: What type of feedback have you received from lawyers, specifically, on how the film has resonated with them?

HG: Well, you know, that’s interesting because a lot of people didn’t know that I knew – it wasn’t a secret – but they didn’t know that I knew that this had happened during the Gotti trial. And so, I’ve gotten a lot of response from lawyers who say, well you really – how do you know the way the system really operates? This was more in response and reaction to the idea that the DA would use a criminal to testify on his behalf and that the DA would kind of trap another criminal to testify. They said, “How do you know how well the system works?” “This is how the system works,” they said, and “How do you know that?” And I’ve been a reporter, and I’ve covered a lot of trials, and I don’t know, it kind of comes by osmosis in a way. But they did react saying that I demonstrated a lot of inside knowledge of the way these trials really work.

NF: What about any kind of feedback from anybody that has ever experienced jury duty and how the film resonates from their own experience?

HG: Well, a lot of people – and I’ve been on jury duty twice – a lot of people could relate to the dynamics and the way some people take over a jury room and the way some people will get stubborn. A lot of people responded that this is the kind of experience that they had had.

NF: You co-wrote and directed the film. Can you tell us about that transition from putting pen to paper and then making it come to life on screen?

HG: Well, you kick the writer off the set. That’s it, get out of here. Stop arguing if it doesn’t work. We’re going to try to streamline the movie, and we’re going to be more responsive to the actors’ portrayal and what they bring to it and let them contribute because it’s their movie, as well, whether you like it or not. You kind of become – you put another hat on, and you kick the writer’s hat off, and you look at the script as objectively as you can. Not as something that you wrote.

NF: What efforts were taken to adequately depict the criminal process on set?

HG: I had a friend of mine who’s a lawyer. Other than that, I covered trials as a reporter for the New York Post. . . .  I tried to be very scrupulous about the cross-examination technique of the lawyers and the general technique of a criminal trial [and] keep that as correct as possible so that it would reflect a real trial.

NF: What do you think makes a realistic courtroom as a good backdrop as a drama?

HG: Anybody who’s ever attended a trial, it’s the highest drama in the world. It’s the most dramatic kind of public spectacle that you can think of, and it covers really every aspect of human life. . . . It’s high drama. One of my favorite things to do as a reporter was to cover trials, and what I really liked to do the best when I didn’t have a particular trial to cover was just wander through the courts and just wander into a courtroom and see what was going on that day in that courtroom. . . . I’ve never been to a boring trial or a trial that wasn’t extremely dramatic to me because of what’s at stake.

NF: This movie came out at an interesting time. One of the most famous criminal trials at least in recent memory was the O.J. Simpson trial. That was obviously very well publicized. This movie came out a couple of months after the famous white Bronco chase and then maybe about a year before his trial. Did you see any following of people going back and re-watching a movie like this in the wake of this general population interest in the criminal process?

HG: Yeah, I did, and I also felt a little bit – and I hate to say this – I don’t mean to say it but it did happen – a little bit of vindication for some people when they saw how shaky the justice system could be. Because it was pretty shaky in that trial, that’s for sure. And people say, “Well gosh, maybe you were closer to the truth than we thought.” And I said, “Yeah, it can happen.” I said, “Yeah, I got a lot of response – positive responses for the picture to stick around all these years.” People are still watching it.

NF: Trial By Jury’s protagonist, Valerie (Joanne Whalley), she gets summoned for jury duty, decides to fulfill her civic duty, and then finds herself getting blackmailed by the mob to return a not guilty verdict in the trial of the mob boss. So after going through this type of experience, how do you think Valerie would feel about the two schools of thought we always hear about jury duty: the first one is that it’s a civic responsibility and the second one that no one should be judged by twelve people who aren’t smart enough to get out of jury duty?

HG: Well, first of all, it is your civic duty, and I just completed a trial as a juror – my second time – and, of course, I don’t want to get out of it. I mean, I hope – this trial ran for a little bit more than I would have liked, but the truth is that I usually found juries make very good decisions. At least I can always say that the jury always makes the decision that I agree with so that might not be the best one, but I found that juries take the job very seriously and that they deliberate. The jury I was on was out for three days arguing about what defendants should get an equal – a sentence – because one had done more than the other. Stuff like that. I’m a big fan of the truth. . . . In New York state, I don’t know what the other rules are, but it’s pretty hard to get out of it. They promise you that it’ll be a short trial, and they show you a little video beforehand, and you kinda get a little inspired, and you want to go. People on my jury – they were very much involved with their lives, and they were on their cell phones before court convened. But once the trial started, they were into it. As a matter of fact one guy, a young guy, after all this yelling – we had some serious disputes in our jury – he got up and said, “Wow, this is great, this is the way the system works.”

NF: Why didn’t Valerie do more to let the judge or the district attorney, Daniel Graham (Gabriel Byrne), know what was going on?

HG: Why didn’t she? She’s frightened. . . . She can’t be convinced that the system will protect her. Somehow, she would cooperate, she would not be protected by the system. And that her kid will be killed or she’ll be killed. She believes this. And there was – and probably still is – there was a time when people thought, actually more so than before, that the government can’t protect them and that the system can’t protect them.

NF: The DA had a difficult task ahead of him, trying to prosecute a mob boss under these circumstances. What does the film say about kind of a job of a prosecutor in criminal matters?

HG: Well, you usually have to use a crook to catch a crook. You have to convince the jury that that’s a legitimate thing to do. And in order to convince the jury, your witness, although your witness might be a criminal on trial for himself, has to be plausible. You have to make his testimony plausible. That’s a real challenge. If you’re going to have a tainted witness, you have to somehow make that witness seem credible to the jury. That’s hard.

NF: What does the film say about the constitutional right to a trial by jury?

HG: I think the greatest document we have is our Constitution. I think that’s what makes us unique and even the protections that are given to the bad guy in this movie are necessary. I think people who have drawn other conclusions, by the way – interesting question that you ask – but a lot of people have said, “Are you saying that the Constitution gives too much protection to people?” and I’m saying, “Not if you’re on trial.” I think it’s – you’re going to have an occasional miscarriage of judgment that you have in this movie. That can’t be helped, but overall, you’re lucky to have a constitution to protect you.

NF: What are your thoughts on the comparisons between Trial By Jury and The Juror which was released two years later in 1996?

HG: That has continued to be a mystery to me. I don’t know how it happened or what happened. A lot of people have told me that one of the explanations is that people who had our script didn’t think the movie was going to be made so they felt free to use certain parts of it for their movie. I don’t know if that’s true or not. The Juror is almost a carbon copy with a couple of little variations of our movie. I don’t know how that came about. I really don’t. I want to be fair to the people. I want to say that they also thought they had the same idea that we did when they saw how the jury had been manipulated in the Gotti case. I don’t know how that happened.

NF: We are a bit premature in that Mistrial’s 20 year anniversary won’t take place until 2016. But I have to ask, what was the inspiration for the story and the frustrations of having good evidence and not being able to get it introduced?

HG: This was kind of a “what if” kinda situation. I felt that many times as a reporter watching trials guys have gotten off because of technicalities or because of a good lawyer or legal technicalities. I just tried to imagine what it would be like for a cop whose case was going up in smoke . . . I just tried to put myself in the place of a cop whose life has been destroyed by a series of events which he didn’t have that much control over. What would happen to him?

BONUS QUESTION: Looking back, can you think of a better job than that of Brian Flanagan (Tom Cruise) at the tiki bar in Jamaica from Cocktail?

HG: No, I can’t. I had that job for one year myself. I was a bartender. I used to bartend for eleven years before the movie. That’s pretty much my experience as a bartender. I worked – well I won’t tell you the name of the island – but I worked at a place very much like the Tiki Bar, and it was a fun time I have to say. It was great. It’s the greatest job ever. And you have some money in the bank as opposed to – when Brian Flanagan is 50 years old, well he’d get fired, most of my friends who were bartenders up here in New York got to be 50, 55 they were in bad shape in any way you can think of.


BIOGRAPHY: Born in the Bronx, New York, Heywood Gould is a screenwriter, journalist, novelist, and film director. He penned the screenplays for many films including Cocktail and directed such films as One Good Cop, Trial by Jury, Mistrial and Double Bang.


California High Court to Decide Duty in Take Home Asbestos Exposure Cases

In recent years, there have been a growing number of lawsuits in which it is alleged that someone developed mesothelioma as a result of exposure to asbestos fibers transported into the home by a relative.  An increasing number of courts have held that a premises owner owed no duty as a matter of law to the relatives and spouses of the worker who brought home asbestos. See, e.g., Bootenhoff v. Hormel Foods Corp., CIV-11-1368-D (W.D. Okla. Aug. 1, 2014) (finding premises owner had no duty to spouse and granting motion for summary judgment).  In California, there is a split on the issue, and it is anticipated that the California Supreme Court may soon resolve the split.

Campbell – No Duty to Take Home Exposure Plaintiffs

In May of 2012, the California Court of Appeal, Second District, Division 7, held that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business. Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 34, 141 Cal. Rptr. 3d 390, 405 (2012), as modified on denial of reh’g (June 19, 2012).

Kesner– Manufacturer has Duty to Take Home Exposure Plaintiffs

In May of 2014, the California Court of Appeal distinguished Cambpell and held that, while a premises owner has no duty to take home exposure plaintiffs, manufacturers do. Kesner v. Superior Court, 171 Cal. Rptr. 3d 811, 819 (Ct. App. 2014) review granted and opinion superseded sub nom. Kesner v. S.C. (Pneumo Abex LLC), S219534 (Cal. Aug. 20, 2014) (“in holding that a duty exists in this case, we emphasize the obvious—that the existence of the duty is not the same as a finding of negligence.”)

Haver – Campell Was Correctly Decided

In June of 2014, the California Court of Appeal, Second District, Division 5, noted that “Campbell was correctly decided” and affirmed the trial court’s dismissal based on a premise owner having no duty to spouses and relatives in take home exposure cases.   Haver v. BNSF Ry. Co., 172 Cal. Rptr. 3d 771, 775 (Ct. App. 2014), review filed (July 15, 2014), review granted and opinion superseded sub nom. Haver v. BNSF R. Co., S219919, 2014 WL 4100140 (Cal. Aug. 20, 2014). In Haver, the court acknowledged the Kesner opinion, but noted that the issue before it involved only a claim of premises liability and that “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action.”  Id.

The California Supreme Court is set to take up the issue, and we are anxious to see how the issue is resolved.

(Hat Tip: @Legal_Alerts and Sedwick).

Friday Links


You know, we must ask what exactly is occurring on the cover of Adventure Comics #370, depicted above and published way, way back in 1968. Our heroes face “The Devil’s Jury,” suggesting perhaps that Superboy did not retain a jury consultant. “Legionnaires, for numerous acts of anti-crime, I sentence you to the Devil’s Island of Space!” exclaims the sorcerer jurist. That sounds unpleasant. Why is it that villains are always sentencing people to vile punishments at mock tribunals? Why are they concerned about the appearance of due process? This makes little sense.

Apparently, Thomson Reuters is officially retiring Westlaw Classic. We don’t know what we are going to do without it.

Okay, the rock band Kiss is being sued by a security guard claiming injuries arising from confetti. Yes, you read that correctly: confetti. For more on that, see here.

Guess what? GWB’s own David Rheney was recently named Lawyer of the Year in Insurance Law for Greenville by Best Lawyers in America. See here on that story.

Here’s our favorite tweet of the week from Texas country musician Owen Temple:

Massachusetts Consumers Allegedly Forgot the Meaning of Coke

To us here at Abnormal Use, Coca-Cola is a lot of things. A delicious beverage on a summer afternoon. An entertaining museum in downtown Atlanta. A title sponsor of the longest race in NASCAR. While Coca-Cola may be a lot of great things, we never considered it particularly “healthy” or “natural.” A purported class of Coke consumers in Massachusetts, however, apparently felt otherwise. Accordingly, they have filed a new suit in federal court alleging that they were duped by Coca-Cola into believing that the product was, in fact, healthy.

According to the complaint, Coca-Cola allegedly found itself facing decreased market share due to increasing consumer preference for beverages without artificial flavoring or chemical preservatives. Rather than alter its product to satisfy consumer demand, Coca-Cola, the consumers allege, embarked on a campaign to intentionally deceive them into believing that Coke is natural and healthy. In addition, the consumers allege that Coca-Cola misrepresented its history by claiming the beverage has not deviated from its original 1886 formula. Because the product is purportedly misbranded, the consumers allege that the product that they purchased has zero value. Had the consumers known about the misrepresentations, they allegedly would not have purchased the product. The suit is captioned Marino v. Coca-Cola Co., 1:14-cv-13446 (D. Mass.) and contains causes of action for breach of warranties, negligent misrepresentation, negligence, and violations of federal and state food labeling laws.

While we are huge proponents of Coca-Cola, we do not pretend to know anything about its ingredients nor do we care. We just know that Coke is delicious. Certainly, no product should be mislabeled whether intentionally or unintentionally. Even if mislabeled, we question whether any of these consumers have actually been damaged. When we first heard of this lawsuit, we thought it must have been the dubious work of The Onion. Who really purchases Coke under the guise that it is healthy? It has been common knowledge for years that sodas, Coke included, are not health foods. Unless these consumers are ostriches with their heads in the sand, we assume they purchased Cokes with the same knowledge as the rest of us.

Salon Allegedly Offers Extra Hospitality – A Pot Cookie – With Its Hospitality Trays

Hospitality food tray skeptics should pay attention to this new California lawsuit. According to a report from CBS Los Angeles, 72-year old Jo Ann Nickerson has filed suit in the Los Angeles Superior Court against a San Fernando Valley hair salon after eating a cookie allegedly laced with marijuana. Nickerson alleges that she ate a cookie from a hospitality tray left for patrons. Shortly thereafter, she allegedly developed hallucinations, rapid heartbeat, confusion, disorientation, light-headedness, dizziness, blurred vision, tingling, headaches, and nausea. Blood tests allegedly found THC in Nickerson’s system. The suit asserts claims for negligence, strict product liability, and negligent infliction of emotional distress.

Not much is known at this time apart from that stated in the pleadings. Nonetheless, we here at Abnormal Use have plenty of questions. For starters, how is Nickerson going to prove that she ingested THC from these hospitality cookies? We are suspicious of gratuitous, unsealed food for a variety of reasons, but the possibility of infused drug cookies has never previously occurred to us. (Of course, we’re in the Carolinas, not California.).  Was Nickerson’s cookie the only pot-cookie in the batch? If not, wouldn’t others have reported sharing similar symptoms? If it was the only one, how did it get there? It seems unlikely that a fellow patron would have a pot-cookie in his/her pocket that could easily disguise itself amongst the other cookies already placed upon the hospitality tray. What the pot cookie preserved? Is there a spoliation of evidence issue? It will be interesting to see how this all unravels.

These marijuana suits become even more intriguing now that marijuana is legal either recreationally or medically in several jurisdictions. If marijuana were legal in California for recreational purposes, would this lawsuit have the same punch, if true? Certainly, the effects were unwanted as Nickerson didn’t choose to ingest THC. In fact, she claims to have never smoked marijuana in her 72 years of age. But, do these cases have the potential to morph into something analogous to second hand smoke claims as society becomes more tolerant of marijuana? Or will the long held taboo still affect these cases post-legalization? Today, this thought is nothing more than idle speculation. In the future, who knows?