Unfortunately, the first federal case to address this pernicious trend is not one in which an injunction was sought against ceaseless Mafia Wars updates. Rather, Zynga Game Network, Inc., the perpetrator of Mafia Wars, brought suit against Jason Williams, Luna Martini, and multiple John Does claiming that they engaged in the “unauthorized sale of Zynga Virtual Goods” through various Mafia Wars related websites. The court explains the backdrop of the dispute:

Mafia Wars (the “Game”) is one of Zynga’s most popular games in which users can start a Mafia family with their friends and compete to become the most powerful family. Zynga has made use of the service mark MAFIA WARS in commerce since September 2008, and of the trademark MAFIA WARS since April 2009. Zynga currently owns Trademark Application Serial No. 77772110 for the mark MAFIA WARS in International Classes 009 and 041. As of December 2009, the Game had over 7 million daily users.

When users sign up with Zynga to play the Game, they receive a certain amount of “Virtual Currency” that can be used to compete with other players. Players can increase their total number of “Virtual Currency” either by their play or by purchase from Zynga. Players use this “Virtual Currency” to purchase various virtual, in-Game digital items (“Virtual Goods”).

Users can additionally earn Virtual Goods by either doing “jobs” or playing the Game. Zynga allows users to use the “Virtual Currency” or Virtual Goods while playing the Game, but retains sole and exclusive ownership of them and of the source code that allows them to be used in the Game. Zynga has not authorized any third party to sell the “Virtual Currency” or Virtual Goods required to play the Game. Users are informed in the Terms of Service that they are prohibited from selling “Virtual Currency” or Virtual Goods for real-world money or for exchanging “Virtual Currency” or Virtual Goods for anything of value outside of the Game.

In the present action, Zynga has alleged claims against Defendants for the unauthorized sale of Zynga Virtual Goods through the Internet domain names MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM. Through these domain names, Defendants sell Virtual Goods that users, playing the Game through the Providers’ websites and/or applications, can use to compete with other players who obtained their Virtual Goods directly from Zynga. Defendants use Zynga’s MAFIA WARS mark and similar variations of it in advertising and for selling Virtual Goods. Plaintiff has never authorized Defendants to use the MAFIA WARS mark, sell Virtual Goods for use in the Game, or transfer Virtual Goods that Defendants have “sold” to players through the Infringing Websites.

Zynga Game Network Inc. v. Williams, No. CV-10:01022, 2010 WL 2077191, at *1 (N.D. Cal. May 20, 2010).

Sigh. No injunction sought; of course, Zynga can’t sue to enjoin itself. Interestingly enough, this is the second federal opinion involving Mafia Wars, the first being Zynga Game Network, Inc. v. McEachern, No. 09-1557, 2009 WL 1108668, at *1 (N.D. Cal. April 24, 2009). In that case, Zynga sought a temporary restraining order against a former employee who had developed Mafia Wars but left the company to create his own game, Mob Underworld.

We write about frivolous lawsuits nearly every day. Isn’t there one vexatious litigant out there who can save my Facebook account from this game? Come on!

In the mean time, we’ll consult Wigmore on Mafia Wars to explore our options.

Because of his concern for “access to justice,” our illustrious governor vetoed House bill 3161, which would have increased certain court fees to help fund the judiciary. This commitment is admirable, because we must ensure that parents have the right to seek redress for their children’s diaper rash. As reported earlier by Law360, parents seeking justice for their children have filed a class action suit in the Southern District of Ohio because Procter & Gamble has manufactured diapers that allegedly cause “rashes, blisters, welts, bleeding, oozing, chemical burns, infections, sores, scarring and/or other ailments on babies’ and children’s extremely sensitive and delicate bottoms and other body parts . . . .” The Complaint is captioned as Clark v. The Procter & Gamble Co., 1:10-CV-00301, and may be accessed via PACER. The dangerous instrumentality is a newly designed Pampers Dry Max diaper.

As noted by the NLM, diaper rash is caused by prolonged contact of the baby’s excretions with the skin. Lawyers will have to engage in discovery about diaper changing habits.

Q: How often did you change Junior’s diaper?
A: As often as he needed it.
Q: Did you ever leave a wet diaper on your child?
A: Never. I stand at the ready when my child urinates.

Moreover, the plaintiffs will develop some pediatric toxicologist who will say that it is more probable than not that Pampers causes diaper rash. I’m not sure what the failure to mitigate argument looks like, since carpet cleaning can be fairly expensive.

A more legitimate concern is P&G’s management of this issue in social media. Facebook has several pages devoted to this issue (see, e.g., here and here), and there is a lengthy discussion thread on Pampers’ Facebook page about the rash. In fact, the Complaint references a Facebook page requesting that P&G do away with the diapers. Through Facebook, a purported class has developed on its own, without any legwork by plaintiffs’ attorneys. Also, P&G will have to figure out how to be responsive via social media without damaging its litigation strategy. Perhaps P&G can offer some free samples as a show of confidence in its product. Whatever is decided, P&G has some problems ahead, because few things are worse than an angry parent.

I am honored to have the Cinco de Mayo post, and, in honor of this holiday, please ponder with me the age-old question, when does a bucket truck become a bucket truck? In Campbell v. Altec Industries, Inc., No. 09-13472, 2010 WL 1740691 (11th Cir. May 3, 2010) [PDF], the Eleventh Circuit certified a question to the Georgia Supreme Court to decide an statute of repose issue. Campbell worked for Georgia Power Company and was injured when a cylinder on a bucket truck, owned by Georgia Power, failed. Campbell sued the manufacturer of the truck (“Altec”) and the manufacturer of the defective lift cylinder (“THI”). The statute of repose limits the timing of a products liability action to “ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” The certified question asks whether the statute of repose begins to run when

Id. The district court ruled that the statute of repose began to run on January 14, 1998, when Altec placed the completed lift assembly on a test chassis and operated it. “The final assembly of the lift cylinder and placement onto the bucket truck, however, did not occur until sometime in March 1998. The initial delivery to the ultimate purchaser, Georgia Power Company, then occurred in April 1998.” Id. The district court’s order granting the defendants’ motion for partial summary judgment shed’s more light on the facts, noting that Georgia Power initially ordered the bucket truck in March 1997 from Altec, and Altec purchased the lower lift boom cylinder in October 1997. The district court essentially reasoned that Altec purchased the cylinder for production of the truck ordered by Georgia Power, and the completion of the lift assembly on January 14, 1998, which could operate independently of the truck itself, was the moment triggering the statute of repose.

Thus, the relevant inquiry is not when the bucket truck ultimately entered the stream of commerce or whether it was operating as it was intended but rather the movement and function of the lift.

It will be interesting to see what Georgia does with this case. The case will impact vehicles that do something in addition to being vehicles (fire trucks with ladders) in addition to finished products made from components that can function independently of the finished product. I like the defendant-friendly ruling, but I don’t know if it will hold up in a different factual scenario, e.g., firefighter deaths from a defective ladder assembly.

Obviously, we vet all posts here to an abnormal extent, seeking to bring you, our readers, content that is timely, thoughtful, and based on rigorous and bulletproof analysis. Because of this tireless dedication to the truth, we need to set the record straight on a subject of great importance to us all: Mardi Gras.

Fellow blogger Brett Burlison runs a plaintiff-oriented blog in San Francisco, and he recently authored a post entitled “Product Liability Gets More Difficult.” The post is reproduced below:

Let’s say you decide to head south and enjoy Mardi Gras. But let’s also say that you have the unfortunate distinction of being harmed by a float. Maybe the float collapses and falls on you or maybe you suffer personal injuries due to one of the vehicles in the parade.

In any event you’re injured. You would think that there would be laws that protect you and other injury victims like you in such a situation and that make sure you are adequately compensated for your injuries – made whole.

Well, not so fast – the legislature in Louisiana is considering a bill that would actually make it harder for injury victims to be compensated if they are harmed at Mardi Gras. According to media reports, a bill has been introduced by a state representative from New Orleans that would require proof of gross negligence or a deliberate act in order to hold a company that makes floats for Mardi Gras liable for damages due to injuries of death.Two years ago an individual was crushed by a float that was defective. Advocates for injury victims believe that the bill has been introduced to simply shield float manufactures from liability for future similar events.

That’s not really the case. As reported here, and as evident from the language of the bill, the limitation of liability does not extend “to any claim or cause of action against a manufacturer or lessor for damages arising from the failure in the design, manufacture, or maintenance of the trailer or float.” H.B. 902, 2010 Reg. Sess. (La. 2010). Rest assured that, were you to be injured by a float, your products liability action would be available, although I’m not sure how to define the “user” of a float.

Apparently there was some confusion as to the scope of the bill, with the bill’s sponsor merely wanting to limit the filing of frivolous lawsuits, i.e., potential plaintiffs severely injured by beads thrown from the float. But there is some question about a constituent of the bill’s sponsor benefiting from the bill. As an example of the type of lawsuits filed, see the New Orleans Metro Crime and Courts News, discussing the appeal of a case of a woman injured by a flying coconut. She claimed injuries including a cut to the forehead, a loss of interest in Mardi Gras, and “nightmares of airborne coconuts.” Apparently, in the olden days of Mardi Gras, persons riding on the float could hurl the coconuts at onlookers and be protected from ordinary negligence. Although the coconut crowd has adopted a tamer, “handing out” policy, other groups still toss “missiles” such as beads, cups, and doubloons from their floats.

On the legal side, surely this move is motivated to protect Mardi Gras from Lousiana’s system of pure comparative negligence, where any drunken reveler in any other setting may run up defense costs and potentially obtain a recovery even if he is 99 percent negligent in causing his own injury. (The coconut article notes the tens of thousands in legal fees spent solely by one group in defense of claims). Nevertheless, if you choose to attend Mardi Gras, beware of flying objects, and plan out your legal theory about how you were using a float at the time of your injury.

To capitalize on our increasing popularity, the contributors at Abnormal Use have floated the idea of pursuing product sponsorship deals, e.g., Old Spice becoming the official deodorant of the blog. Today, I adopt the Honda Gold Wing as the blog’s unofficial motorcycle. No motorcycle better speaks to the classic risk-aversion of the defense attorney. I, personally, have never seen a Gold Wing rider 1) without a helmet or 2) cruise at a speed in excess of 35 miles per hour. In addition, the design of the Gold Wing promotes the use of Daubert against all oncoming Plaintiffs’ attorneys.

In American Honda Motor Co. v. Allen, No. 09-8051, 2010 WL 1332781 (7th Cir. Apr. 7, 2010) the Seventh Circuit considered the application of Daubert prior to an order certifying a class. Honda sought leave to appeal the district court’s grant of class certification. Plaintiffs, unhappy purchasers of Gold Wings, asserted that the bike had a design defect: Namely, the motorcycle does not properly compensate for “wobble.” Imagine the front wheel of your bike shaking from right to left to the point where you would lose control. (Note: A Google search will reveal multiple videos on motorcycle wobble not appropriate to link here.). Plaintiffs’ claims were based entirely on the expert report of Mark Ezra, who has testified against Honda since the mid-1980s. Ezra developed a wobble decay standard, which set forth that a motorcycle, by its design, should dissipate a certain amount of wobble so that the rider does not react to the wobble.

The District Court, for multiple reasons, was critical of Mr. Ezra’s science, but declined to exclude him at such an early stage of the proceedings. The Seventh Circuit ruled that this failure to exclude was an abuse of discretion and “exclusion is the inescapable result” in this matter. Going forward, the Seventh Circuit noted that some substantive decisions may have to be made prior to deciding the motion for class certification.

You’ve just lost several million dollars gambling in Vegas. After thinking about how to explain this to your wife on the plane ride home, and assuming your survival after such conversation, your thoughts begin to turn on how to make up this deficit in the family budget. Although a return trip to Vegas is not immediately ruled out, your thoughts turn to filing suit against some big pockets. After Wells v. Smithkline Beecham Corp., No. 09-50244, 2010 WL 1010591 (5th Cir. March 22, 2010) [PDF], the return trip to Vegas may seem more appealing.

Second, this brings up a larger philosophical point about accrual of causes of action. While I am sure that someone has examined this in a law review article, I don’t have a lot of extra time to comb Hein Online. The Fifth Circuit makes a big deal out of “statistically significant epidemiological support.” It’s hard to study a purported disease until someone tells the scientist that they think they might have that disease or exhibits such symptoms. Then the scientist has to gather a statistically significant group to study, rule out causes, and then make a hypothesis of causation. It can take a long time to create “statistically significant epidemiological support,” longer maybe than some statutes of limitations. The court even says this:

Perhaps Requip is a cause of problem gambling, but the scientific knowledge is not yet there.

Id. There have to be some legal guinea pigs for cases involving new diseases/side effects that will likely not recover in order to establish scientific evidence that a particular drug either does or does not cause a specific side effect. Obviously we can’t wait for studies in every situation. That means that the initial plaintiffs may accrue a cause of action (reasonable notice that something is wrong with you) before there is legally significant proof of causation. What does this mean for defendants? Use Daubert early and often, before the science develops. But this does not help Wells. Maybe he can asset an equitable lien in some plaintiff’s future proceeds, if there turns out to be causation later. For now, Wells is left with the remorse that his money that he brought to Vegas stayed in Vegas.

Over the course of the past year, I have become quite accustomed to the federal government telling me that it knows what is best for me, regardless of what actually may be best for me. Depending on which side of the aisle you stand, you may revel in the audacity of hope, or just simply marvel at the audacity of your political opponents. But we need not sink into the ether of partisanship; not this day – not when there is jurisprudence to be discussed. As will be seen in the coming months, in our land of multiple sovereigns, the judiciary too walks a delicate line among competing interests. As an example of that trend, the Eastern District of Pennsylvania recently authored an opinion illustrating the unique nature of our system.

In Hoffman v. Paper Converting Machine Co. , No. 08-3012, 2010 WL 845984 (E.D. Pa. March 3, 2010), the Plaintiff injured himself when using a printing press, amputating fingers on his right hand. He sued in federal court. The defendants moved for summary judgment. The initial issue in the decision relates to the proper substantive law for decision. Even though a federal court sitting in diversity applies substantive state law, the federal court may still be forced to speculate what a state court might do when state law is nebulous on the issue at hand. The district court, per the case discussed below, ruled that the Third Restatement was the standard of decision, and it decided various issues raised in the summary judgment motion.

In Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009) [PDF], the Third Circuit was confronted with the issue of whether Pennsylvania courts would adopt the principles of the Third Restatement of Torts. The Third Circuit had some pretty strong indications (a pending case before the Pennsylvania Supreme Court) that the Pennsylvania Supreme Court was going to move to the liability scheme found in the Third Restatement, so the Third Circuit made that prediction. It turned out that the Pennsylvania Supreme Court dismissed the pending appeal as improvidently granted, and, therefore, Pennsylvania, for the time being, still adheres to the Second Restatement.

Defendants, pay attention. You can now do some forum shopping of your own, deciding whether to stay in state court, or remove to federal court, depending on which liability scheme is favorable to you. If you decide to remove, don’t forget about Iqbal and Twombley. As much as I would love to pontificate a potential law school exam question on this, I think I’ll just make the point that, in the short term, plaintiffs in Pennsylvania will have to pay attention to their products cases (including potential CAFA jurisdiction) to ensure that they get to apply Pennsylvania substantive law, at least in the short term, or in the alternative, prepare their complaints to survive a motion to dismiss under either standard. For the time being, in federal court, Pennsylvania state law is not really Pennsylvania state law.