New Year’s Eve!


It’s New Year’s Eve! We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. wish you a safe and festive evening. We can’t believe that it’s going to be 2015. In fact, twenty-five years ago, back in the halcyon days of 1989, we went to the movies to see Back To The Future Part II, in which the protagonist travels into the future and arrives in 2015.  We don’t think the coming year will be full of hover boards, but we’re still excited about it. (In fact, on Friday, we plan to dwell a bit more on the predictions of the future made by BTTF 2.).

By the way, above, you’ll find the cover of Batman: The Long Halloween #4, published in 1997 (itself a fine year). It seems appropriate for the day, no? Here’s a brief summary (from a much longer post on the issue) courtesy of Comicvine:

The gangsters of Gotham are having a New Year’s Eve gala aboard a yacht. Carmine “The Roman” Falcone is talking to Salvadore “The Boss” Maroni, and suggest that Maroni might be behind the Holiday killings. Falcone runs into his sister Carla and tells her that he is looking for his son Alberto. Alberto is scene alone by the rail of the yacht. Carla steps outside to have a cigarette. A gloved hand is seen unscrewing one of the light bulbs behind Alberto. An untraceable handgun fires and Alberto goes over the rail. Carla rushes towards the sound of the shot and finds the gun along with a glass of champagne and some confetti. It looks like Holiday has claimed another victim.

Yikes! Whatever the case, we wish you a fun evening, and we’ll see you next year.

Take 2: Alas! Another Liquor Under Fire Over Being “Handmade”


Yesterday, we reported on the Tito’s Handmade Vodka lawsuit over the liquor’s “handmade” label.  That news came on the heels of the lawsuit filed against Maker’s Mark in California challenging the validity of the claims that the Kentucky bourbon is itself handmade.  With so much fuss about handmade liquor, we here at Abnormal Use thought it worthwhile to add an additional day of commentary.

As you may recall, the Tito’s lawsuit was filed by two New Jersey men on behalf of themselves and vodka drinkers everywhere who claim the Texas company’s “handmade” moniker is a sham. In addition to featuring the word “handmade” right in its brand name, Tito’s website states:

[Tito’s vodka] is microdistilled in an old-fashioned pot still, just like fine single malt scotches and high-end French cognacs. This time-honored method of distillation requires more skill and effort than modern column stills, but it’s well worth it.

According to the latest lawsuit, however, this “time-honored method” actually involves a large manufacturing plant in Texas.  Specifically, Plaintiffs allege:

This entire manufacturing process of the defendants is devoid of the caring touch of human hands.  This is a material factor in many individuals’ purchasing decisions, as they believe they are purchasing a product that is made in small amounts that is of inherently superior quality.

As such, the vodka is allegedly “not worth the purchase price paid.”

Even assuming the allegations are true, how have these plaintiffs really been damaged?  As was the case with Maker’s Mark, we here at Abnormal Use don’t pretend to know the difference between “handmade” and machine-made liquor.  We do, however, recognize that there is a certain premium associated with any handmade product.  For many, handmade products are perceived to be better made and, thus, come with a higher price tag.  On the other hand, we do not know whether handmade vodka is really better than that “devoid of the caring touch of human hands.”  Our guess is that blind testing would reveal a certain placebo effect associated with knowledge that the vodka is homemade.  After all, “top shelf” just means where the bottle is stored, right?

Obviously, if Tito’s represents one thing to consumers while doing another, it may pose a problem.  But the real question is whether the vodka-Red Bull of a regular Tito’s drinker now tastes a little less fulfilling after learning of this lawsuit.  Sometimes, ignorance is bliss.

New Jersey Plaintiffs: “Tito, Your Vodka Isn’t Handmade!”

Two plaintiffs from New Jersey are on a mission to exact justice on behalf of those who they believe were duped in to buying mass produced vodka. Gasp!  The alleged evildoer? The maker of Tito’s Handmade Vodka.  The plaintiffs have filed a lawsuit alleging that Tito’s production process is “the complete opposite of the product being handmade.”  This comes on the heels of a similar suit on which we reported against the distiller of Maker’s Mark Bourbon.

Plaintiffs Marc McBrearty and Paul Cantilina say Tito’s had a legitimate claim to the “handmade” label when the vodka was made in a 16-gallon pot still. However, the plaintiff’s claim that “it is now manufactured by machines in a highly mechanized process on a 26 acre operation that produced approximately 850,000 cases in 2012.”  They allege that by using this process and not dropping the “handmade” moniker, Tito’s is intentionally misrepresenting its product in violation of New Jersey’s Consumer Protection Act.

According to a 2013 Forbes article, Tito’s did nearly $85 million in sales in 2012 at around 12 million bottles.  In spite of this huge number, Tito’s founder, Bert “Bertito” Beveridge, certainly isn’t conceding that his product fails to live up to its name.  He told Forbes, “If someone tells me my brand isn’t a craft-distilled spirit because it’s too big, I just say, ‘I make it the same way I’ve always made it. I just have a lot more stills.”

On the one hand, the lawsuit seems very silly, considering that all decent vodka tastes exactly the same.  However, given that fact, little schticks like being “handmade” are what sets the brands apart. We’ll be watching this lawsuit and the others like.

Friday Links


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that everyone has a wonderful Christmas yesterday. With that in mind, we’ve got time for one more Christmas themed comic book cover, so we direct your attention to that of The New Archies #21, published not so long ago in 1990. As you can see, the Archie gang is up to its usual set of tricks.

Last week, on December 17, we published a piece about the U.S. Navy’s new laser weapon. In so doing, we referenced – and included a picture of – Dr. Evil. Well, just three days later, on the final episode of “Saturday Night Live” of the year, Dr. Evil returned. How about that?

Speaking of which, this is our last edition of Friday Links of 2014.

Behold: “6 Predictions For Law Firm Marketing in 2015” from the LexisNexis Business of Law Blog.

Congratulations to GWB shareholder Ron Wray on his election as president of the South Carolina Defense Trial Attorneys Association. For more information, please see here.

Don’t forget: You can follow us on Twitter here and on Facebook here!

Merry Christmas!


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish everyone a very Merry Christmas. To celebrate the occasion, we direct your attention to the Dennis The Menace comic book cover above, published way, way back in 1965. (We thought we’d go with something traditional today.). We’re a bit concerned with young Dennis, who finds himself on a snowy rooftop. That fact scenario is a torts exam question waiting to happen, isn’t it? Whatever the case, we hope you have a safe and festive holiday. And, dear readers, try not to bill too many hours over the break.

Now, we’re off to open some presents, so we’ll see you tomorrow with a Christmas-themed edition of Friday Links.

Christmas Eve


We hope and trust that you are not in the law office today. If you are, put down your work product and time slips and go spend time with your family. It’s Christmas Eve! Of course, on this most merry of occasions, we simply had to share the comic book cover above, that The Brave and The Bold #148, published way, way back in 1979. Look at Batman and Plastic Man fighting alongside Santa Claus! That’s some Christmas magic!

If you’re traveling today, be safe, and when you arrive at your destination, be merry. We wish you the best and a very happy holiday.

Wild Goose Case May Proceed, Says Mississippi Supreme Court


The first line of the Mississippi Supreme Court’s opinion in Janet Olier v. Donna Bailey says so much in so few words: “Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard.”  As it turns out, Olier broke her arm and sustained various other injuries during the goose chase.  Olier filed suit in the County Court of Jackson County, Mississippi asserting theories of premises liability and the “dangerous propensity rule.”  The trial court granted summary judgment on the basis that “Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier” and that “there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident.” Following the Jackson County Circuit Court’s affirmation of the County Court’s ruling, Olier appealed to the Mississippi Supreme Court.

The factual section from the Mississippi Supreme Court’s opinion in this case warrants a block quote:

Olier wanted to see Bailey’s blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier.  However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.

The Mississippi Supreme Court affirmed the trial court on the premises liability theory but disagreed on the dangerous-propensity rule portion.  In Mississippi, the dangerous-propensity rule dictates that an animal owner may be exposed to liability for an attack by his or her animal when: 1) there is proof that the the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack and 2) there is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.  Here, in the “aggressive bird” case of first-impression, the Court found that “Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly” and held that summary judgment on that issue was inappropriate since “a jury could find that was happened to Olier was foreseeable.”

We will be interested to see what happens in this case on remand.  For some reason, the part that really stood out to this author was Olier’s assumption that the bamboo pole was useless and threw it down without attempting to fend off the charging goose.  A bamboo pole does seems like a good tool for fending off a goose, but then again, this author has minimal experience with such things.

(Hat Tip: Mississippi Litigation Review).

Another California Court of Appeal Holds That Premises Owners Owe No Duty To Take-Home Asbestos Plaintiffs

A California Court of Appeal has added to the list of recent opinions dealing with the duty owed to take-home asbestos plaintiffs.  As we previously blogged, the California Supreme Court is set to decide two somewhat conflicting, but potentially reconcilable, California Court of Appeals decisions in take-home asbestos cases.  In Kesner, the appellate court imposed liability on manufacturers in take-home asbestos cases, and in Haver, the court held that premises owners have no duty to take-home asbestos plaintiffs.  The November 21, 2014 opinion in Beckering v. Shell Oil Companyavailable here, follows Haver’s lead and holds that the premises owner defendant, Shell Oil Company, owed no duty to the take-home plaintiff. 

Like the Haver Court, the Beckering court relied on Campbell v. Ford Motor Company in reaching its decision.  The Plaintiff in Beckering attempted to distinguish Campbell, arguing that Campbell applies only to the narrow situation in which the relative who brought home the asbestos was an independent contractor of the premises owner.  The Beckering court rejected this argument, noting that the Campbell Court specifically stated in a footnote that the independent contractor status of the relative was not the basis for the decision.

This is positive for premises owner defendants in take-home asbestos cases in the sense that Justice Aldrich did not create a Court of Appeals split on the issue of the duty owed by premises owners to take-home plaintiffs, but as the Beckering Court noted, the issue will not be resolved with any certainty until the California Supreme Court makes its decision.

(Hat Tips:  Legal Newsline and Torts Prof Blog).

Friday Links


Since this is our last edition of Friday Links before Christmas, we thought we’d share the cover of Archie’s Giant Series Magazine #216. We’re not entirely certain when this particular issue was published, but it seems appropriate (especially with Archie’s looming 75th birthday). Enjoy.

Today is the last day you can vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support. The polls close at the end of the business day today.

Today, by the way, is our editor Jim Dedman’s birthday.

The Lawyerist site – a blog we’ve linked many times over the years – is starting a new podcast. For more information, click here.

Our favorite tweet of late simply has to be this one:

Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges


When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.