Happy Valentine’s Day From Abnormal Use!

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you, our dear readers, a happy Valentine’s Day. Since today is a holiday of sorts and a Saturday, as well, we hope you can pry yourselves from your desks and billable tasks to enjoy the day. Above, you’ll find the cover of Batman: The Long Halloween #5, published back in the halcyon days of 1997. (You can find a detailed summary of the plot of this issue at the always reliable Comicvine website by clicking here.). Whatever the case, have a safe and festive holiday weekend.

To see our past Valentine’s Day posts (and Valentine themed comic book covers), please see here, here, here, here, and here.

Friday Links


So, tomorrow is Valentine’s Day. To celebrate the occasion, we direct you to the above comic book cover, that of Donald Duck and the Valentine’s Day Hitch #1, published in 2013. Here’s the plot summary from the always reliable Comicvine website:

Valentine’s Day is drawing near, and Donald Duck is in trouble: he is having a hard time writing a romantic card to Daisy! For inspiration, Donald decides to use an old Valentine’s Day card that he wrote many years before…for someone else!

If that’s Donald’s plan, we suspect that hijinks will ensue.

By the way, in addition to Valentine’s Day Eve, it’s also Friday The 13th. This seems appropriate.

We hope everyone enjoyed the Hospitality Law Conference this past week in Houston, Texas. We were pleased to be there.

Are you following us on Twitter? If not, why not? Click here and drop us a line to let us know how we’re doing.


New Mexico Woman Sues Flask Maker For Placing Her Likeness On Flash

Imagine perusing a novelty store only to see your high school yearbook photo plastered on a flask along with the phrase: “I’m going to be the most popular girl in rehab.”  Apparently, that frightful experience actually happened to a New Mexico woman.  She didn’t find it very humorous, and thus, she is suing the novelty products maker over the flask that included her likeness.

According a complaint filed by Veronica Vigil federal court, defendant Anne Taintor, Inc. obtained and used her high school graduation picture from ethe 1970’s without her permission on flask with the aforementioned phrase emblazoned thereupon. It is not entirely clear how Anne Traitor obtained the picture (although according to news reports they do claim to have purchased the image).  Nevertheless, Ms. Vigil alleges that the New York company defamed her by linking her image to a product that makes light of substance abuse. According to the complaint, Ms. Vigil is “an active member of her church and does not consume alcohol or drugs.”

The flask is no longer available on the company’s website (Annetaintor.com).  There is, however, a used one listed on Amazon.com for the bargain price of $229.00.

An Examination Of The Legal Framework Of Vaccination Law In Light Of The Recent Measles Outbreak


In the past month, there have reportedly been at least 92 measles cases, which is odd considering the disease was “eliminated” in the United States in 2000.  Because most of us do not have direct experience with measles, a refresher is in order.

According to the CDC:

Measles is a highly contagious virus that lives in the nose and throat mucus of an infected person. It can spread to others through coughing and sneezing. Also, measles virus can live for up to two hours on a surface or in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, then touch their eyes, noses, or mouths, they can become infected. Measles is so contagious that if one person has it, 90% of the people close to that person who are not immune will also become infected.

To prevent this nasty disease, the CDC recommends a measles vaccine, which according to the CDC, is 97 percent effective at preventing the disease.  In fact, every state requires a measles vaccination unless an individual meets certain state-specific exemptions.  For example, in California, an individual may opt out of the vaccination requirement based on personal beliefs or medical reasons.  However, in Mississippi and West Virginia, an individual may only opt out for medical reasons, such as a weakened immune system.  Due in part to vaccination laws, about 94.7 percent of kindergartners were vaccinated against measles last year, again according to the CDC.

Like any drug, there are occasionally adverse side effects of vaccines.  To compensate individuals injured by vaccines, Congress set up a no-fault compensation system, the National Vaccine Injury Compensation Program (NVICP), via the National Childhood Vaccine Injury Act of 1986 (NCVIA).  The NVICP is funded by a 75 cent per vaccination tax.  NVICP claims are filed with the U.S. Court of Claims, and reportedly, the Court of Claims had awarded nearly $2.5 billion to vaccine victims for vaccine injuries.  However, two out of three NVICP applicants are denied compensation.  Until 2011, it was unclear what, if any, remedy individuals had apart from the NVICP.

In 2011, the Supreme Court clarified the issue and effectively ended vaccine litigation. Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).  After the Bruesewitz family’s NVICP application was denied, they pursued relief against a vaccine manufacturer in the U.S. District Court for the Eastern District of Pennsylvania.  The trial court granted summary judgment based on federal preemption, and the Third Circuit affirmed.  In a 6-2 decision (Justice Sotomayor recused herself due to her pro-vaccine work with the Obama administration), the Supreme Court affirmed, holding that private causes of action against vaccine manufacturers for vaccine injuries were preempted by the NVCIA.  That is, the exclusive remedy for someone injured by a vaccine is the NVICP.  So, the debate over whether a private right of action against a vaccine manufacturer for vaccine injury was settled in 2011.

The recent debate sparked by the measles outbreak concerns parents’ decisions to not vaccinate their children based on an applicable exemption.  On one side of the debate, you have parents who, for various reasons (fear of side effects, religion, et cetera), choose not to have their children vaccinated.  On the other side of the debate, you have the argument that the non-vaccination decision of these parents endangers those with weakened immune systems, those who for whatever reason the vaccine did not take (approximately 3 percent of people can still get measles even after receiving the vaccination).  This author declines the opportunity to side with either group in this post.  However, it will be interesting to see what litigation evolves out of the debate.

Attorney As Counselor At Law

“The practice of law is more than a mere trade or business, and those who engage in it are the guardians of ideals and traditions to which it is right that they should from time to time dedicate themselves anew.”

 –Scottish lawyer Hugh Patterson McMillan, Ethics of Advocacy, 1916

A friend recently suggested that since I was a good listener that I would make a good counselor. My response? I am a counselor!  A counselor at law.  That’s a description for lawyers that is often underappreciated. But I do think of myself of a counselor of sorts, guiding clients through the minefield of risk management with the goal of avoiding the bad things that can happen to an individual or business. I also advise clients on how to escape a legal mess once something bad does happen.

The terms “attorney at law” and “counselor at law” are often used interchangeably, according to some attorneys for birth accidents in Chicago. However, they describe different roles for the lawyer. The counselor at law advises and counsels a client on particular matters.  By contrast, the attorney at law acts as the client’s agent, speaking and acting on the client’s behalf, with third parties or in court.

As I reflect upon my 27 year career as a lawyer and more at JD Injury Law, APC, I have enjoyed both roles but particularly that of trusted advisor. Sometimes I wonder if lawyers jump too quickly into the attorney role before working their way through the counselor role. Certainly, counseling our clients, focusing on good advice, and working through a solution, can avoid future problems. Sometimes you must move beyond the counselor role, but as lawyers, we would do well to focus on that role and only move into the attorney role when we make a conscious decision to do so.

Remembering the role of counselor can help build trust and strong, long-term client relationships. We can use our experience to educate our clients and teach them ways to avoid unnecessary conflict and minimize risk. If litigation occurs, a lawyer may continue in the counselor role in addition to their role as attorney, wearing both hats at once.

How do you decide which role is appropriate? Do you draw a distinction at all? Let us know what you think!

Abnormal Use At The Hospitality Law Conference In Texas


Last week, we alerted you that we here at Abnormal Use would be present at the DRI Product Liability Conference in Las Vegas. Well, in keeping with that recent tradition, we will also find ourselves at this week’s Hospitality Law Conference in Houston, Texas. Accordingly, if you’re in the Lone Star State for this seminar, please seek us out and introduce yourself.

Just like last week, our editor, Jim Dedman, will be live tweeting this conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter, please check it out and send us a note. A bonus: Jim may still have some of snazzy promotional materials to distribute.

We look forward to seeing you there!

Friday Links


As we previously mentioned, we here at Abnormal Use are in Las Vegas this week for the DRI Products Liability Conference. Accordingly, we present you with the cover of Godzilla #9, published way, way back in 1978. As you can see, Godzilla is not too please with Las Vegas, and you know the city is in trouble when the comic book storyline is titled “Last Gamble in Las Vegas.

By the way, you can read up on the Products Liability Conference by searching the #DRIProducts hashtag on Twitter.

Spoiler Alert: Next week, we will be at the Hospitality Law Conference in Houston, Texas. If you see us, say hello!

Well, I guess we’re going to have to watch “Better Call Saul,” the “Breaking Bad” prequel spin-off featuring Walter White’s infamous attorney, Saul Goodman. Let us know your thoughts, if any, when and if you watch it.

Chance Favors The Prepared Mind: Litigation Lessons From The Super Bowl

Bill Belichick knows that preparation is the key to winning, and Sunday’s Super Bowl confirms his thinking.    In the waning moments of the game Tom Brady sits dejected on the sidelines as his fourth Super Bowl win is evaporating before his eyes.  Jermaine Kearse had just made an insane catch, and everyone knows that a one-yard run from Marshawn Lynch is a gimmie.  In the blink of an eye, an unknown rookie cornerback snatches victory from the jaws of defeat.  Tom Brady is jumping up and down on the sidelines like a school boy who just heard that school was canceled for a snow day.

The pundits immediately began questioning Pete Carroll’s calling a pass play on the one-yard line.  In reality, the call was not a bad call.  New England was in a goal line defense and the Seahawk’s play was a slant with a pick built into it.  If the pass had been incomplete, Seattle still had a timeout and two plays for Lynch to run the ball.

So what does all this have to do with a products liability blog and litigation?    In the post-game interview, Malcolm Butler was unable to articulate much about his interception.   However, the one word that jumped out at me was “preparation.”  Clearly, Bill Belichick is a great coach, and part of his genius lies in motivating his players to be prepared for contingencies.  As litigators, we see a lot of different plays called throughout the course of a particular case.  However, chance favors the prepared mind.  Young lawyers in particular need to be mindful of the value of preparation; know the adversary, know the judge, review the facts, analyze the law, and then do it again.   When one steps into the arena, whether it is the Super Bowl or the courtroom, you cannot be overly prepared.   Malcolm Butler had studied game films that had suggested to him that the Seahawks formation could be a pass play across the middle.  Once he realized that, his instincts took over, and he made a great play on the ball.  Just two plays earlier, Jermaine Kearse’s preparation and practice of catching thousands of balls helped him to catch a ball that was uncatchable.  Repetition is the mother of all skill, but I will cover that in another post.

In the final analysis, New England won because of Malcolm Butler’s preparation.  He had properly prepared for the game, and when the crucial situation presented itself, his preparation paid off.   In the course of litigation, when critical opportunities present themselves, chance will always favor the prepared mind.

Potential Lawsuits Lead to Draconian Measures

An occupational hazard for attorneys is being able to foresee the most benign things as potential lawsuits. The world is not really one giant lawsuit waiting to happen, but it sure seems that way. Call us old-fashioned, but we yearn for the days of yesteryear when people could enjoy their lives without fear of being sued. Unfortunately, our hopes appear to be nothing more than a pipe dream.

Case in point, NBC News recently reported on the rising number of towns which have banned or restricted sledding. Guess why anyone would want to ban sledding, the quintessential winter activity? Lawsuit concerns, of course. Mayor Roy Buol of Dubuque, Iowa, explained to NBC News in discussing his town’s recent ban:

We’re worried about litigation about the city not doing their research or their work to prepare sledding areas for sledders and making the city liable for the accidents that would occur on those properties.

We understand towns wanting to make sure their citizens are safe, but should they really have to be concerned about sledding liability? If a town encourages its residents to sled in a minefield, yes, it should be concerned.  But towns shouldn’t live in fear of being sued for the run-of-the-mill sledding accident. People choose where they want to sled.  When people choose to slide down a hill with nothing between them and the snow and ice but a piece of plastic, accidents are bound to happen. The city has nothing to do with that.

With that said, we understand the draconian measures these towns have taken. They can’t possibly pad every curb and utility pole and place cushioned backstops at the base of every hill. Until they do so, the risk of future litigation is real unless they just outlaw the very mechanism that can lead to those lawsuits in the first place. At least, that is what our lawyerly intuition tells us.

Abnormal Use At The DRI Product Liability Conference (In Las Vegas)


We here at Abnormal Use have been writing about products liability cases for five years now. So, it may not surprise you, dear readers, that we will be attending the 2015 DRI Product Liability Conference this week in Las Vegas, Nevada. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. So, our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts. (Jim is also the vice chair for newsletters for the DRI Product Liability Committee.).

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note.