An important reminder: When Plaintiff’s counsel attempts to inject prejudicial statements into litigation, object. A failure to do so can be perilous indeed. In Wicklund v. Pacific Cycle, L.L.C., No. 08-CV-486-GKF-FHM, 2010 WL 3368924 (N.D. Okla. August 23, 2010), Judge Frizzell of the Northern District of Oklahoma considered whether repeated references by the plaintiffs’ attorney to the Chinese origin of the alleged defective product, a bicycle, was grounds for a new trial or relief from judgment. Counsel for the defendant, Pacific Cycle, argued that the plaintiffs’ attorney “repeatedly, deliberately and impermissibly played to the perceived anti-Chinese prejudice of the jurors, thereby irrevocably tainting the verdict.”

In the 1960s and 1970s, the Ford Pinto was dubbed “the barbecue that seats four.” The gas tank, located in an unfortunate location in the back of the car, had an even more unfortunate habit of rupturing, and exploding, if the car was rear ended.

Recent news reports suggest that the new Ferrari 458 Italia may have a similar flame-broiled propensity. According to Ferrari, the heat shield located in the wheel assembly of the car could become deformed, “bringing it too close to the exhaust system and igniting.”

The company has recalled the cars so that the glue adhering the heat shield can be replaced with metal fasteners, because if the adhesive ignites, it could “render the vehicle inoperable and possibly result in a crash,” according to the National Highway Traffic Safety Administration. Yes, we imagine so.

Which begs at least two questions–first, what possessed the designers of this 4.5 liter, 570-horsepower, $230,000 automobile to forgo the metal fasteners in the first place and use glue to adhere the heat shield to the car? And, second, can we choose a Pinto rental while the Ferrari is being fixed? At least the Pinto will be going far slower than 120 mph when it explodes.

On September 23, 1999, Jeffrey Smith, an experienced ATV rider, was attempting to back his Yamaha ATV, more specifically a 1987 Yamaha Big Bear 350, down a hill when his foot slipped and struck the right-rear fender of the ATV. The fender collapsed, and his right leg became trapped between the frame and the wheel. The ATV then rolled back over Mr. Smith, causing him to suffer severe injuries that left him disabled and disfigured. According to the website, this ATV was Yamaha’s first 4×4 ATV:

Abnormal Use does not want to be accused of failure to warn, so here’s your warning: you might not want to read this post right after lunch. The FDA has issued a warning on the use of frozen mice sold for reptile food. (You may recall that we mentioned this very briefly in a previous Friday Links post, but you must have thought we were kidding.). Now, before you use your mouse to click directly out of Abnormal Use for the day, you might want to keep reading.

The contaminated mice, sold by Biggers and Callaham LLC, doing business as MiceDirect, may be contaminated with salmonella, a nasty little bacteria that can cause some very unpleasant symptoms. The FDA is warning those with compromised immune systems not only to avoid handling the rodents themselves, but also to avoid handling any reptiles who may have already consumed contaminated rodents. Some people have already reported symptoms.

So, if anyone in your family likes to cuddle with snakes, you might want to stop that practice. We think that might be a good idea generally, but even more so now.

As we recently reported here, this summer the Kellogg Company voluntarily recalled boxes of its Corn Pops, Honey Smacks, Froot Loops, and Apple Jacks due to “an off-flavor and odor” emanating from the cereal. We can’t believe that Toucan Sam, who always seems to be bragging about his nose, missed those foul-smelling boxes.

The FDA recently provided an update on the recall, explaining that the culprit causing the bad smell and taste appeared to be the wax paper liners in the boxes. According to the FDA, only about 50 reports of the foul smell were reported, and no one sustained a serious injury. One of the question-and-answer notes in the update caught our eye:

Are Waxed Papers Legal and Safe to Use in Food Packaging?
Yes, but only when they are manufactured and used in compliance with Federal Food, Drug and Cosmetic Act requirements and FDA regulations.

It comes as a reminder that the FDA does not only regulate the food on our shelves, but also its packaging, known in government-speak as “Food Contact Substances.” Other items with which you may be familiar in terms of the regulation of packaging that comes into contact with food include the debate that rages concerning the level of Bisphenol A, also known as “BPA,” in plastic containers and baby bottles.

More information about the regulation can be found on the FDA website page devoted to the wide world of packaging. In the meantime, we can apparently eat our favorite sugary cereal without first subjecting it to the smell test.

You know him well. He is the professional expert. No matter the issue, the case, or the product, there he is, opining that your client’s product is unreasonably dangerous, and unquestionably caused the plaintiff to suffer personal injuries, psychological damage, and lost income. In fact, as soon as you see this expert’s name at the top of the report, you can recite its contents, eyes closed and one hand tied behind your back.

Not so fast. In Beam v. McNeilus Truck and Manufacturing, Inc., 697 F. Supp. 2d 1267 (N.D. Ala. 2010), the Northern District of Alabama considered the defendant’s motion to exclude the testimony of Dr. L.D. Ryan, a mechanical engineer and professional expert, as to the defectiveness of the design of a garbage truck. The case involved an accident in which the plaintiff’s decedent, a garbage collector, fell or stepped off of the riding step of a garbage truck and died as a result of his injuries. The central issue of the case was whether the truck was defectively designed with regard to the riding steps.

The court carefully considered Dr. Ryan’s qualifications, noting that “Plaintiff’s expert . . . has little or no experience in the world of refuse collection, road-vehicle design generally, or garbage truck design specifically.” Furthermore, although Dr. Ryan had watched “three hours of videos on ‘YouTube,’ he has no training or experience in designing waste-hauling routes” and has no knowledge “about the history or evolution of rear-loading garbage-truck designs.” In fact, the court stated, the “mere fact that Dr. Ryan is a licensed engineer is, in and of itself, insufficeint to qualitgy him as an expert in this case.”

The court’s harshest criticism of Dr. Ryan’s so-called qualifications, however, was reserved for his status as the professional expert. The court made several references to the fact that Dr. Ryan had acted as an expert in hundreds of cases. In fact, the court devoted an entire footnote to Dr. Ryan’s career expertise, opining that “Dr. Ryan has been involved in hundreds of cases invovling a variety of products, and his testimony has been at issue in a number of those cases,” and providing a list of some of those cases.

With no actual expertise on the subject of garbage truck design, the court excluded Dr. Ryan and his reports. Without expert testimony as to the defective design, the plaintiff could not make her case, and therefore the defendant’s motion for summary judgment was also granted.

Bravo, Northern District of Alabama. Abnormal Use salutes you. Next time, plaintiffs, make sure your expert does more than watch YouTube.

Looks like we can all keep our respective iPhones/Blackberries/Droids safely attached to our ears. Our spouses and bosses will be thrilled.

The U.S. Food and Drug Administration recently issued a consumer update [PDF] stating that cell phone use does not increase the risk of developing certain types of brain tumors. Apparently, cell phones emit a type of electromagnetic radiation that four different types of brain tumors just love to absorb (as if one was not enough). However, in the largest study of its kind to date, Interphone, in connection with the World Health Organization, released the findings of a study [PDF] which indicate that using a cell phone did not increase a person’s likelihood of developing such a tumor. The study involved 13 countries and took place over 10 years. Pretty impressive. A National Cancer Institute study also cited by the FDA found no increased frequency of brain tumors between 1987 and 2005, despite increased cell phone usage between those two dates.

This is good news for those of us who use our phones so much that it would be best if we could simply duct tape them to our heads. All the same, we here at Abnormal Use found a few of the points in the FDA’s consumer update to be slightly discouraging. First, what the FDA giveth, the FDA taketh away:

“There are still questions on the effect of long-term exposure to radio frequency energy that are not fully answered by Interphone.”

]Great. So, FDA, you’re saying…you’re still not sure. Second, the FDA suggests that one reason cell phones don’t contribute to brain cancer today is because newer, smaller phones emit fewer emissions. We’re pretty sure Gordon Gekko might be in trouble:
Finally, the consumer update includes tips on how to decrease exposure to radiation while using your phone, including using hands-free devices and limiting the time on the phone.

So, FDA, you’re saying…you’re still not sure. Well, thanks for the update anyway.