Dismissal Of Erection-Causing Motorcycle Lawsuit Affirmed On Appeal

When men reach a certain age, they purchase sports cars or motorcycles to make them feel younger. The “mid-life crisis,” if you will.  According to the allegations in a recent lawsuit against BMW, this phenomenon took an entirely new angle for one California man.

As reported by The Marin Independent Journal, a California appellate court affirmed the dismissal of a 2012 lawsuit filed against BMW North American and Corbin-Pacific Inc., a manufacturer of motorcycle seats. In the suit, Henry Wolf alleged that he suffered from a multi-day erection after riding his 1993 BMW motorcycle for two hours allegedly due to vibrations stemming from the “ridge-like” seat. The suit contained product liability, negligence, and negligent infliction of emotional distress causes of action. None of the claims were properly before the court, apparently. The trial court previously found in favor of BMW and Corbin-Pacific due a lack of evidence supporting Wolfe’s claims. Likewise, the appellate court found that the appeal “fails to comply with the rules of appellate procedure” and “contains no intelligible argument.” As a result, the dismissal was affirmed and Wolfe was ordered to pay the defendants’ costs on appeal.

We don’t know what to make of the merits of this case. This is the first we have heard about a motorcycle inducing a prolonged erection. At the trial level, Wolfe’s urologist, Dr Jack McAninch, did, in fact, testify that Wolfe suffered from priapism, a condition involving a persistent erection. Likewise, Wolfe also offered testimony from a neurologist, Dr Jonathan Rutchik, that it was possible for vibrations from a motorcycle to cause priapism (this testimony was apparently excluded).

There is certainly an infinite number of jokes we could make about the relationship between motorcycles and the male anatomy. But, hey, we are professionals.

Friday Links


We here at Abnormal Use are enjoying our Thanksgiving holiday, and we hope that you, dear readers, are doing the same. Above, in the spirit of the occasion, you’ll find the cover of Scooby-Doo! #114, published not so long ago in 2007. It appears that our heroes, Scooby and Shaggy, are having an eventful Turkey Day, wouldn’t you say?

We’ve been watching “Marvel’s Daredevil” on Netflix. You may recall Daredevil as the comic book superhero who is a lawyer by day and vigilante hero by night. We’ve written about him a few times over the years in light of his connection to the legal profession. The new television show is interesting, but its depiction of BigLaw is a bit off. Apparently, Daredevil, whose real name is Matt Murdock, and his law partner, Foggy Nelson, worked as “interns” at a large New York City firm before starting their own shop. If the timing of the episodes is to be believed, they graduated from law school, worked as “interns,” awaited promotion to become full associates at the big firm, and then quit before becoming associates. Is this how NYC firms operate these days?

In case your counting, it’s now left than a month until the release of Star Wars: The Force Awakens.

Congratulations to the new members of the ABA Journal‘s Blawg Hall of Fame. We made that list in 2014.

Happy Thanksgiving!


We’re not entirely certain what is happening on the cover of Batman: Li’l Gotham #2, published not so long ago in 2012. We can’t say we’re familiar with the concept of “Li’l Gotham,” either, but as we here at Abnormal Use continue to grow older, we have become comfortable with not understanding every new bit of popular culture. But, as you can see, it has -something- to do with Thanksgiving, so it is appropriate for comment on this day, Thanksgiving 2014. You’d think Batman might have better things to do, though, than harass pilgrims and turkeys and such, though.

All that said, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your friends and family a Happy Thanksgiving. Be safe, be merry, and be festive.

Black Friday Lawsuits

Black Friday

Some of our readers may have recently experienced “the shopping quasi-holiday known as ‘Black Friday’,” which has been lovingly referred to in judicial opinions as Thanksgiving holiday’s “more frantic associate.”  Anjum v. J.C. Penney Co., No. 13 CV 0460 RJD RER, 2014 WL 5090018, at *3 (E.D.N.Y. Oct. 9, 2014). It appears to be virtually undisputed that Black Friday is “one of the busiest retail shopping days of the year.” Dephilippo v. Cinnaminson Twp. Planning Bd., No. A-5837-12T3, 2014 WL 5782817, at *9 (N.J. Super. Ct. App. Div. Nov. 7, 2014). As one might imagine, the madness of Black Friday has also been known to prompt litigation. See, e.g., Romag Fasteners, Inc. v. Fossil, Inc., 29 F. Supp. 3d 85, 95 (D. Conn. 2014) (“This motion was filed on the eve of ‘Black Friday,’ which is the highest volume shopping day in the United States and kicks off the holiday shopping season.”).

In a recent lawsuit in Mississippi, the Plaintiff alleged “that while she was shopping at the Belk department store in Tupelo, Mississippi on November 23, 2012, the Friday after Thanksgiving and the day commonly known as Black Friday, a clothing rack fell on her, causing her to sustain injuries.” Burress v. Belk Stores of Mississippi, LLC, No. 1:13-CV-00230-GHD, 2015 WL 3743918, at *1 (N.D. Miss. June 15, 2015). Another Plaintiff filed suit after she was “directed by a Target employee to go to the end of the line” that formed outside of the store and, “[o]n her way to the back of the line Plaintiff tripped and fell on the black asphalt.” Wilguess v. Target Corp., No. CIV-14-1367-C, 2015 WL 5165273, at *1 (W.D. Okla. Sept. 2, 2015). A Plaintiff in Florida filed suit alleging that she was injured “when a crowd of customers rushed to enter one of Defendant’s retail stores for the annual post-Thanksgiving sale.” Chewning v. Target Corp., No. 3:12-CV-1086-J-12JBT, 2013 WL 3013864, at *1 (M.D. Fla. June 14, 2013).

Perhaps the best Black Friday-related lawsuit ever filed was initiated by famed frivolous lawsuit filer Jonathan Lee Riches, who filed a “pro se complaint under 42 U.S.C. § 1983 against ‘Thanksgiving, Pilgrims, Mayflower Movers, Pilgrim Pride, Turkey Hill, Black Friday, Corn on the Cob, Cleveland Indians'” alleging that ““defendants are responsible for higher traffic, that they are ‘conspiring with the oil companies to drive up gas prices,’ and that Thanksgiving is ‘responsible for his mistreatment.’” Riches v. Thanksgiving, No. C 07-6108 MJJ (PR), 2007 WL 4591385, at *1 (N.D. Cal. Dec. 28, 2007).

We hope that everyone enjoyed their Thanksgiving holiday and that no one finds themselves on the defendant side of the “v” in a Black Friday-related civil action.

Exploding E-Cigarettes: The Combination Of Batteries And Heat Has Expected Result

Recently, electronic cigarettes, battery-powered vaporizers which simulate the feeling of smoking without burning tobacco, have taken the tobacco industry by storm. While they claim to be a new, “safer” alternative to traditional cigarettes, the benefits and health risks of e-cigarettes remain uncertain. Perhaps the more immediate safety risk, however, is not with the effects of inhaling vaporized nicotine, but rather, with placing a battery-powered device in one’s mouth. According to a couple of California men, such a risk resulted in their e-cigarettes exploding.

As reported by The Bakersfield Californian, Vincent Garza has filed suit against e-cigarette manufacturer, Flawless Vapes and Supplies, LLC, as well the stores at which he purchased the e-cigarette and the battery charger, claiming that he suffered severe injuries to his mouth, tongue and finger as a result of an exploding e-cigarette. Gregory Phillips is also filing suit because his e-cigarette allegedly exploded in his pocket, causing severe injuries to his leg. The suits allege that the manufacturing and design of the e-cigarettes does not take the appropriate measures to ensure that the devices are safe.

Obviously, no consumer product should be placed on the market if it explodes when operated properly. Nonetheless, we here at Abnormal Use can’t say we are even remotely surprised by these allegations. E-cigarettes typically have a heating element used to atomize the “e-liquid” solution to create the vapor. Heat + battery + mouth would seem to equate to a dangerous proposition. Even if e-cigarettes are “safer” on the lungs than traditional cigarettes, it seems as if they are just replacing one safety hazard with another. To be fair, we are not aware of any evidence that exploding e-cigarettes are actually a significant problem. Millions of e-cigarettes have been sold, and these lawsuits represent a statistically insignificant minority, numerically speaking. Our point is simply that the risk should have been anticipated. In the grand scheme of things, we suppose that risk, when compared to the known risks of smoking traditional cigarettes, is worth the trade off.

Thanksgiving in 1810, 1910, and 2015

Here we are again on the Monday before Thanksgiving. Accordingly, it’s time that we once again direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.” Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades. That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before. That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 105 years after its publication. (That neat illustration above – and many others like it – comes directly from the 105 year old article.). Have a look, and let us know what you think.

Friday Links


Take a look at the comic book cover above – that of Destroyer Duck #1, published way, way back in 19812. It appears to be a straightforward depiction of action and violence, right? But what caught our eye was the “Special Lawsuit Benefit Edition” language emblazoned across the top of the cover. We don’t know anything about that, but we are certainly going to look into it.

Over at the Litigation and Trial blog, Max Kennerly offers a post called “All About Objecting To The Form Of A Question At A Deposition.” There are some cases on this issue which you may not have seen. Once you’ve read Max’s new post, you may want to revisit this piece from our own archives.

We have some good news. Bruce Springsteen will apparently be the musical guest for “Saturday Night Live” on December 19.

Our favorite legal tweet of late comes from our friend Keith Lee of the Associate’s Mind blog. In it, he remarks upon the current state of law blogs. (Speaking of Keith, he has updated his Social Media Subpoena Guide, which you can access here).

Possum Law: The Case With Monumental Implications


Every now and again, some important legal news comes from our own backyard here in the Carolinas. None may be more important than the current legal battle over the New Year’s Eve “possum drop” (think Times Square, but with a possum) in Brasstown (Clay County), North Carolina. Earlier this year, People for the Ethical Treatment of Animals (PETA) filed suit seeking to have a North Carolina statute which suspends the application of wildlife protection laws to possums from December 29-January 2 each year (signed into law by Governor McCrory on June 11, 2015) declared unconstitutional. The law at issue was aimed to protect the annual Brasstown tradition of counting down the new year by lowering a live possum in a clear plastic box in front of hundreds of spectators.


The battle has been brewing since 2011 as PETA began challenging Brasstown’s use of a live possum for its signature event. A previous law authorizing the practice, which applied only to Clay County, was struck down by the court. As a result, the North Carolina Legislature took the matter statewide much to the chagrin of PETA. According to the complaint, the statute is unnecessary as previous “possum drops” have included such apparently acceptable substitutes as “a road-killed opossum (shampooed, blow-dried and frozen), a porcelain opossum figurine, an empty box decorated with photos of opossums, and a pot reportedly filled with opossum stew.”

The State moved to dismiss the lawsuit on the grounds that PETA lacked standing to challenge the constitutionality of the law. Last week, however, the Court denied the motion and set the case for a hearing on December 11th to determine whether Brasstown will be ringing in the new year with a live possum or some frozen, shampooed roadkill. Regardless of the outcome, we are certain the decision will be as influential as Marbury v. Madison. We will keep you posted in time for you to make your New Year’s Eve plans.

Changes To Federal Rules of Civil Procedure Effective December 1, 2015


For those of us who practice in federal court, it is time to fasten our  seat belts, because the times they are a changin’. The Federal Rules of Civil Procedure have been amended, and the amendments go into effect on December 1, 2015.

Specifically, the following rules have been amended:

  • 1 – Scope and Purpose
  • 4 – Summons
  • 16 – Pretrial Conferences; Scheduling; Management
  • 26 – Duty to Disclose; General Provisions Governing Discovery
  • 30 – Depositions by Oral Examination
  • 31 – Depositions by Written Questions
  • 33 – Interrogatories to Parties
  • 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes.
  • 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
  • 55 – Default; Default Judgment.
  • 84 – Forms

A “redline” version of the amended rules can be downloaded here. Some of the changes are relatively minor, but Rule 26 has been extensively overhauled. For example, the following is the new scope of discovery:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any  party’s claim or defense and proportional to the  needs of the case, considering the importance of  the issues at stake in the action, the amount in controversy, the parties’ relative access to  relevant information, the parties’ resources, the  importance of the discovery in resolving the  issues, and whether the burden or expense of the  proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

So, evidence still mustn’t be admissible to be discoverable, but there are now additional considerations, including “the amount in controversy” and the “importance of the discovery in resolving the issues.” The Committee Notes make it clear that the amendments are intended to reduce the discovery burden on litigants and to ensure that discovery is proportionate to the size and scope of the case.

We here at Abnormal Use welcome the amendments, and we hope that the amended scope of discovery will simplify discovery and reduce the burden that discovery has historically placed upon litigants.

James Bond Should Never Go To Mississippi

Bond Girl

Movie goers are abuzz over the most recent installment of the James Bond franchise, Spectre. But who is James Bond? Apparently, the subject is up for debate.

In one case, in which the characteristics which make up James Bond were hotly contested, the Plaintiff pointed to various character traits specific to Bond, including “his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; his sophistication . . . .” Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995). At least one commentator has asked “[i]f James Bond is removed from international adventure and placed in a supermarket or an office-building with no villains to fight or women to seduce, would he still be the same character?” Samuel J. Coe, The Story of A Character: Establishing the Limits of Independent Copyright Protection for Literary Characters, 86 Chi.-Kent L. Rev. 1305, 1306 (2011). Differences aside, everyone can agree that Bond frequently seduces members of the opposite sex, and that he has done so quite prolifically over the course of his sixty year, 24 film career.

At least for Bond, there do not appear to have been any consequences to date for his behavior. If Bond would like that trend to continue, he should avoid the state of Mississippi.  Why Mississippi, you ask? In Mississippi, “[a]n unmarried female may prosecute an action for her own seduction, and recover damages.” Miss. Code. Ann. § 11-7-9; Mississippi Law of Damages § 19:3 (3d ed.). We know what you are thinking, that Bond can just stay out of trouble by only having social encounters with married women. Not so fast! In Mississippi, an aggrieved spouse can recover against a paramour for seducing the other spouse if he or she proves “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Carter v. Reddix, 115 So. 3d 851, 857 (Miss. Ct. App. 2012).   Unfortunately for Bond, his very essence is wrongful in Mississippi.

So, Bond would be wise to avoid Mississippi.  Otherwise, he risks paying some of his fortune to seducees, seducess suing in a representative capacity on behalf of similarly situated women, and/or spouses of seducees.

(Hat Tip: D. Scott Murray and Jacob T.E. Stutzman).