Friday Links


Above, you’ll find the cover of Police Comics #94, published way, way back in 1949. As you can see, it depicts a courtroom setting, and we’re a bit surprised that we’ve just now chanced across it after five years of searching for such covers. The noted hero Plastic Man is apparently on trial, as the cover asks, “Plastic Man . . . Guilty?” He’s obviously not doing himself any favors with his courtroom antics, and to be honest, we’re surprised the court allowed him to wear goggles during his trial.

Did you see that the Wall Street Journal’s Law Blog cited our post this week on defective chicken nuggets? We published our post – by intrepid blogger Kyle White – yesterday morning, and just a number of hours later, we learned that the folks at the WSJ had seen fit to link our piece in their own story. How about that? (Click here for our original post on the defective chicken nuggets and here for the WSJ Law Blog‘s piece).

There’s news on the now infamous Led Zeppelin “Stairway To Heaven” litigation! See here for more!

Our favorite tweet – and article – of the week comes from that publication of publication, The Onion. Who knew they riffed on products liability issues?

Is There A Duty To Test A Chicken McNugget?

A Chicago man recently filed a lawsuit against McDonald’s to recover damages incurred after he allegedly bit into a chicken nugget which contained shards of bone. Lawsuits over objects in food which are not supposed to be there are common, so no surprise there.  The interesting part is that the man has reportedly joined a cause of action for failure to test the chicken nugget:

The suit contends that McDonald’s employees failed to inspect and test the Chicken McNugget in question for bone fragments prior to serving it to Anderson.

This is where he is going to lose those initially sympathetic to his cause. How does one test a chicken nugget for bone shards before serving it to the customer? Is McDonald’s supposed to use the x-ray machine that TSA uses at the airport? Is there a chicken nugget bone shard test kit that we don’t know about?

On a personal note, I know that I have been using this purported duty to test for a while now to trick my daughter. I make her a sandwich, then tell her that I need to take a bite first to make sure it’s not poisoned. It works every time, probably because she is three. I’ve been concerned that any day now she’s going to detect the ruse and I won’t be able to perpetrate the scheme any longer. However, if this suit goes anywhere, I may be forced to continue to take a test bite of every sandwich before serving it . . . for liability reasons . . . .

Popehat Is Happy To Be Here, And We Are Happy He Is

Many thanks to our editor who sent me a link to the Popehat blog by California attorney Ken White. Mr. White and I have something in common: we have both been diagnosed with and treated for depression. I have written about that previously here on Abnormal Use, along with commentary on how lawyers are generally vulnerable to depression, suicide and substance abuse.

In his post, “Happy To Be Here,” Mr. White writes poignantly about his own struggles with both depression and anxiety and his psychiatric hospitalization. What a powerful story; he puts a needed face on an insidious medical illness.

Mr. White does not just describe the hopelessness and the struggle to find the right treatment. He also tells us what we can each do to get us through the tough times:

Ask for help. You can’t go it alone.

Don’t rule anything out.

Keep re-evaluating.

Think about your body along with your head.

Talk to people; you’re not alone.

Mr. White ends his article with these words: “I won’t ask you to be fine. Nobody’s fine. Be better. Reach out.”

Thank you, Mr. White.

All In!

ALL IN! Coach Dabo Swinney has claimed that exclamation as his mantra from the beginning of his tenure as head football coach at Clemson University. He demands a commitment from his players, staff, and coaches: a commitment to be “ALL IN” all the time. The “A” is for attitude; the first “L” is for leadership. The next “L” is for legacy. The “I” is for improvement and the “N” is for new beginnings. Nothing can be accomplished without a good attitude and capable leadership. Coach Swinney asks his players what their legacy will be when they leave Clemson. Will they leave the football program better than it was when they first arrived? Will they have made a difference in the lives of others? To leave such a legacy requires constant improvement, every day at practice, and at every game. Finally, there is always hope for a new beginning.

Coach Swinney knows all about hope for a new beginning. From an early age, he had a front row seat in watching a family destroyed by addiction. His father was an alcoholic; Coach Swinney said he was a good man and a good father, but sobriety was a constant struggle. Coach Swinney knows the shame and embarrassment of having to knock on a neighbor’s door in the middle of the night to ask for help. Coach Swinney knows what it is like to throw all of your belongings into the back of a pickup truck when the family home is taken. Coach Swinney knows what it is like to hear sirens as the police approach your house. Coach Swinney knows what it is like to sleep on the floor of a small one bedroom apartment.

In the midst of this tragic childhood existence, Coach Swinney found hope for a new beginning. Words of encouragement from friends and coaches; a helping hand from a special neighbor or family member. Coach Swinney was able to take the liability of this experience and turn it into an asset, using his platform as the head coach of a major college football program. Coach Swinney currently serves on the board of directors for The Family Effect, a non-profit in Greenville, South Carolina, that works to reduce addiction as a leading cause of family collapse and harm to children. They operate Serenity Place, a residential treatment program for pregnant women, young mothers, and their preschool age children. The program at Serenity Place is focused and intense, providing treatment for addiction through individual and group counseling. They provide therapeutic child treatment and the family builds long-term skills for strength and self-sufficiency. For older boys, age 13-17, The Family Effect operates The Academy, a residential treatment center. The boys at The Academy have experienced significant problems with addiction and receive a wide range of counseling and treatment options. Among the outpatient teenagers, 80 percent are less likely to be using alcohol thirty days after treatment, and 97 percent are less likely to be using drugs.

I recently attended The Family Effect Transformation Breakfast, “a celebration of what works for children in crisis.” Coach Swinney shared his personal story, demonstrating why he is “ALL IN” for families and children living with addiction. You can find out more about the mission and programs of The Family Effect, volunteer opportunities and community impact by visiting its website at

Memorial Day


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope you had a safe and fine Memorial Day weekend. Our offices are closed today. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

Above, you’ll find the cover of Fightin’ Army #139, published not so long ago in 1979.

Friday Links


Well, it’s Memorial Day weekend, and we once again express our great appreciation for those who lost their lives serving our nation. Above, we feature the cover of Captain America’s Bicentennial Battles #1, published back in 1976. We hope everyone has a safe and eventful holiday weekend.

Okay, so who else is saddened that “Mad Men” has ended its run? We here at Abnormal Use remain crestfallen.

At long last, Overlawyered has cited Stereogum. Of course, it’s on the recent “Netflix for Vinyl” model and the legal barriers for same. See here for me.

Get this: The popular website Mental Floss ran a piece entitled “29 Fun Facts about ‘My Cousin Vinny.’” In that post, the author quotes a number of our interviews with the writer, director, and cast members. How about that? Click here to read it (and pay particular attention to numbers 7,11,12,13, and 19).

Our favorite tweet of late:

Fitbit Faces New Lawsuit Over 67 Minutes of Sleep

As America has become more engulfed in the fitness craze, numerous products aimed at helping consumers with their new found healthy lifestyles have hit the marketplace. One such product is the Fitbit activity tracker, a wearable device that measures data such as steps walked, calories burned, and quality of sleep. Sounds like the perfect product for the health conscious consumer, right? According to a new class action filed in the Northern District of California, not so much.

Florida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised.  According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge.  As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.

Because we here at Abnormal Use have yet to buy into the fitness craze, we regretfully do not own a Fitbit device. If we did, we would expect it to work as advertised. Nonetheless, we do question how any alleged inaccuracies in the sleep-tracking function cause “serious public health concerns.”  We understand that a certain amount of sleep is a necessary component of a healthy lifestyle. However, the Fitbit’s alleged 67-minute misrepresentation as to the amount of sleep hardly seems like it would actually have an effect on one’s health. A person sleeps the amount a person sleeps regardless of how many minutes of sleep Fitbit represents to the person. We are not aware of any representations made by Fitbit that the product will actually make you sleep better or longer. The Fitbit just measures the amount of sleep (albeit allegedly incorrectly). Your sleep is your sleep. No Fitbit needed.

Call us old-fashioned, but is a sleep-tracker even necessary in the first place? People know how they feel when they wake up in the morning.  If you didn’t get enough sleep, you feel tired.  If you got enough sleep, you feel refreshed.  People don’t need a fitness tracker to tell them that.  Of course, they didn’t need to pay an extra $30 for it, either.

JC Penney “Phantom” Pricing Lawsuit

Get this: There is definitely a real class action lawsuit against JC Penney in federal court in California over purported “phantom discounts.”

The lawsuit accuses JC Penney of hiking retail prices on apparel and accessories to trick shoppers into believing they were receiving sizable discounts when the items were advertised as being on sale.  The long and short of it is that the when retailer would run a sale, they would allegedly markup the price of the item and then “discount” it back down to the same price it had been at for months. For example, the complaint alleges that for a sale they’d mark up a shirt that had been selling for $17.99 to $30 and then they’d sell it for 40 percent off . . . or $17.99. The class action lawsuit has been certified by the federal judge presiding over the case.

To be fair, JC Penney apparently tried to move to everyday low pricing in 2012.  Ironically,  executives billed the new pricing model as the end of “fake pricing.” Apparently the customers really wanted fake pricing because the everyday low pricing was a miserable failure and they quickly went back to a more traditional discounting model.  It does make you wonder, however, if any of these claims of phantom discounting claims occurred during the period that the retailer was switching between business models.

The Federal Trade Commission does actually have regulations governing this sort of thing.  16 C.F.R. 233.1 requires retailers to sell items at original prices for a “reasonable length of time” before discounting them.  Sort of makes you wonder how Jos. A. Bank continues its thing, but that’s a story for another day.

Reflections on iCivics Day

About this time last year, we ran a post inspired by participation in iCivics Day, which involves lawyers speaking at various schools around the community about the mechanics of the United States government.  This week, we participated in iCivics Day again, and we are again inspired to post regarding the experience.

Obviously, it is never a bad thing to volunteer in the community. The community benefits, and so does the volunteer. If you do nothing else in the community, we would argue that every lawyer should speak to a group of children about being a lawyer.

Children genuinely care about what lawyers do. They want to know war stories. They want to know what a lawyer does on a daily basis.  There will inevitably be children in the class who have already decided to be lawyers, and they want to know how to become one.

Perhaps the most fulfilling part of the experience is that children understand that lawyers are part of one of the most noble and honorable professions in the free world. Lawyers work with the basic fabric of our civilization – the law. Lawyers test the legal system to make sure it is still working. Lawyers defend laws. Lawyers challenge laws. Lawyers ensure that their clients’ legal rights are protected, and that accordingly, everyone’s rights are protected.

Bottom line: Get out there and talk to some students about what we do.  You will like it, the kids will like it, and the teacher will like it.  If you want to know more about iCivics day, and what you can do to get involved, you can visit the iCivics website, or we are sure that our own Lindsay Joyner would love to tell you more about how to become involved.

Can Defense Lawyers Co-Opt the Reptile Strategy?

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Kyle White saw the publication of his “Can Defense Lawyers Co-Opt the Reptile Strategy?” piece in the most recent issue of DRI’s Strictly Speaking. Here’s the first two paragraphs:

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”).  The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival.  Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous.  In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements.  This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.

Strictly Speaking is the official newsletter of DRI’s Product Liability Committee. You can read the full article here. This longer work is a revisiting of Kyle’s earlier blog post on the topic, which you can find here.