Many of us here at Abnormal Use handle personal injury lawsuits, including lawsuits in which people are injured while using a product. Those who do not handle personal injury cases for a living can entertain themselves for hours watching #epicfail videos, which depict calamitous accidents involving trampolines, forklifts, recreational vehicles, exercise balls, and various other common products. These videos show people jousting with coworkers in their forklifts, knocking over shelving filled to the brim with store inventory, landing headfirst in the sand after flipping off of an exercise ball, flipping a recreational vehicle while slamming on the brakes and attempting to slide around an obstacle, and various other antics. Unfortunately for us, these videos are not mindless entertainment. They are stressful, issue spotting exercises. We routinely assist clients in defending cases in which plaintiffs have seriously injured themselves while engaging in these obviously dangerous activities. Videos that appear to some people as hilarious examples of people behaving with reckless abandon appear to us as problems for our clients. Most of the time, incidents that end up being litigated were not captured on video, so we must reconstruct what happened using eye witness testimony, physical evidence, and expert assistance. Don’t get us wrong. We love assisting our clients with these case. Our point is, we can’t enjoy these videos as mindless entertainment, and we are envious of people who can.

Recently, the Michigan Uber driver accused of murdering six people during a shooting rampage filed a lawsuit against Uber alleging that the transportation company is responsible for his incarceration. Was the headline “Accused Murderer Files Two-Page, Handwritten Lawsuit Alleging that Uber Ruined His Life”? For some media outlets, yes, for others, no. Various media outlets reported the story under headlines such as “Michigan driver charged with murder files $10 million lawsuit against Uber.” When Erin Andrews’ lawyers filed an amended complaint specifying that Andrews sought $75 million in damages, some media outlets reported the story under headlines such as “DWTS’ Erin Andrews files 75 Million Dollar Nashville lawsuit.” Hulk Hogan’s lawsuit against Gawker has been similarly reported as the “$100 million Hulk Hogan vs. Gawker lawsuit.” In our opinion, the goal is to suggest that these cases will ultimately be worth this much money in order to illicit eye rolls and comments regarding jackpot justice. The end result is that negative stereotypes regarding lawyers and the legal system are unfairly reinforced. We would ask our readers to ignore these misleading headlines and to see them for what they really are.

What is are these dollar figures based on? They are based upon the “ad damnum clause” in the Plaintiff’s complaint, which in some states, is used to specify an amount of money sought by the Plaintiff. In most states, this number is meaningless. In some states, Plaintiffs must specify that the amount is greater or less than $75,000.00, because if damages exceed $75,000.00, the amount in controversy requirement is met for federal court jurisdiction (if the parties on opposite sides of the lawsuit are completely diverse). In some states, Plaintiffs are not allowed to specify an amount of damages. In states in which a specific amount may be pleaded in the complaint, Plaintiffs occasionally include an exorbitant amount in order to generate publicity for the lawsuit. The bottom line, though, is that a lawsuit is worth what a jury awards (or the judge in the case of a bench trial), not a penny more, not a penny less, and further, the proportion of the jury’s (or judge’s) award that can actually be collected.

In the Erin Andrews case, the “$75 million lawsuit” tag turned out to be misleading. The Plaintiff’s attorney did not ask the jury for a specific amount of money in closing, and the jury ultimately awarded $55 million. Of the $55 million, the hotel owner defendant was required to pay $26 million when its share of the verdict was reduced proportionate to its percentage of fault. The $28 million portion of the verdict that the jury assigned to the individual defendant (who is currently serving time in prison) might as well be forgotten, as that will never be collected. With the uncertainty of what will happen on appeal, and potentially applicable insurance policy limits that are well below the amount awarded, the case will likely settle for significantly less than the jury awarded. As to the Uber driver, there is no cause of action for ruining someone’s life by not inviting them to company parties. That lawsuit will likely be dismissed almost immediately, despite the request for $10 million on the handwritten complaint.

The takeaway: We urge our readers to look past these misleading headlines, and we urge the media to be more accurate when reporting on civil lawsuits. The reality is that Plaintiffs can ask for whatever they want, and the Plaintiff’s desired outcome is certainly something to consider in civil lawsuits. However, Defendants have the ability to hire lawyers who are able to chip away at the Plaintiff’s case during discovery, and to present the facts favorable to the Defendant at trial. And good defense lawyers can significantly reduce the amount actually awarded or otherwise paid, occasionally to zero.

Let’s not describe lawsuits by their ad damnum clauses.

The Nashville jury in the Erin Andrews peephole trial has reached a verdict. The jury has reportedly awarded $55 million. Our recap of the trial leading up to closing arguments is here. After our trial recap post, we had the opportunity to watch the live stream of the closing arguments. What struck us was the Plaintiff’s lawyer’s Reptilian closing. We have previously written on the Reptile Strategy here, here, and here. In the Erin Andrews case, the Plaintiff’s closing argument repeatedly harped on safety rules, safety rule violations, and public endangerment, all of which are tenants of the Reptile Strategy. We also noticed that the damages discussion in the Plaintiff’s lawyer’s closing was reminiscent of the strategy taught in the popular Plaintiff’s lawyer strategy book, David Ball on Damages 3.  That strategy involves tying noneconomic damages to something concrete. Here, the Plaintiff’s lawyer reminded the jury that the video had been viewed 16.8 times over five years and that it would be viewed millions of times in the future. The Plaintiff’s lawyer asked the jury whether it was worth $1, $5, or some other amount every time a stranger was able to watch a video of Erin Andrews without clothes. Our takeaway: This is yet another cautionary tale as to the effectiveness of the Reptile Strategy and the need for defense lawyers to be prepared to defend against it. It will be interesting to see how much Erin Andrews is actually able to collect and whether the verdict will survive any appeal.

For those who live in a windowless basement with no access to the Internet or television, we are pleased to be the first to inform you that Erin Andrews, well-known sportscaster, model, and reality show co-host, is currently involved in a trial.

Andrews filed suit (see original complaint here) against Marriott International, Inc. and various other defendants in the Circuit Court of Cook County, Illinois in 2010, alleging that the Defendants were all involved in a series of events which ultimately led to Defendant Michael Barrett booking a Nashville Marriott hotel room next to Andrews’ room, surreptitiously obtaining video footage of her nude through a peephole, and posting the video on the Internet. On December 1, 2011, the lawsuit was apparently re-filed in Davidson County, Tennessee, and the Tennessee complaint included a damages demand of $10 million. On October 16, 2015, the Complaint was amended to include a damages demand of $65 million.

The following is a recap of the trial to date.

Day 1 – February 22, 2016

Trial began on February 22, 2016 in the Davidson County Courthouse in Nashville with Judge Hamilton Gayden presiding. Twelve jurors were selected, which included nine women and five men. The judge originally barred media from the courtroom, but the judge reconsidered shortly thereafter and allowed media in the courtroom.

Day 2 – February 22, 2016

Andrews attorney, Randall Kinard, delivered his opening statement, telling the jury that: Andrews suffered humiliation when the peephole videos were posted in 2009. Kinnard pointed the finger at hotel staff for telling Barrett which room Andrews was staying in, and subsequently allowing Barrett to book a room next door to Andrews. Marriott’s attorney, Marc Dedman, told the jury that the stalker was solely to blame for the video and subsequent posting, and that Andrews actually benefited from the incident, because her career thrived thereafter due to the ensuing publicity. The first witnesses were Marriott employees who testified that it was Marriott’s policy not to give out room numbers. However, a call center employee apparently noted that Barrett requested a room next to Andrews, and another employee confirmed that it would not be unusual to accommodate a guest’s request to stay next to another guest.

Day 3 – February 24, 2016

On the third day of trial, Andrews’ standard of care expert testified that Marriott violated the relevant standard of care by identifying Andrews as a guest in the hotel, by not ensuring that guest room door peepholes were secure, and by not providing adequate security. Steve Andrews, Andrews’ father, also testified regarding the emotional damage that Andrews experienced as a result of the incident. The day ended with a former front desk supervisor at the hotel testifying that she was never given a guest privacy training manual, but that she was told not to give out guest room numbers.

Day 4 – February 25, 2016

On day 4, the jury saw the 4.5 minutes of footage.  A computer expert testified that his Internet research suggested that the video had been viewed by more than 16 million people between July of 2009 and January of 2016. Andrews’ therapist provided testimony regarding the emotional damage experienced by Andrews.

Day 5 – February 29, 2016

Barrett testified by video, explaining the process by which he was able to obtain a room next to Andrews.  Barrett also apparently filmed approximately nine other women through peepholes. Andrews took the stand herself on Day 5, testifying about the anxiety that she has experienced, the fear, and the “jeers” she receives at games regarding the video.

Day 6 – March 1, 2016

Andrews’ direct testimony continued into day 6, and her cross examination continued thereafter. A video of portions of her cross examination can be accessed here, but the cross examination touched on, among other things, the benefits to Andrews’ career that resulted from the publicity. The crescendo of the cross examination was the listing of the endorsements that Andrews has picked up since the incident. Andrews rested her case following her testimony, and Marriott then began its case. A talent coach, Patrick Donaher, testified via video deposition that Andrews continued to perform well at her job after the incident. Lewis Kay, Andrews’ publicist and manager, provided similar testimony via video deposition.

Day 7 – March 2, 2016

Stephen Barth, Marriott’s standard of care expert, testified that Marriott did not violate any policies or procedures as alleged.  A former manager of the hotel denied that any rules or procedures were violated, and that the hotel had passed a secret inspection with flying colors three months prior to the incident.  A psychologist who evaluated Andrews testified that she indeed suffered from mild PTSD, but that the symptoms would resolve with treatment. The front desk worker who checked Barrett in on the day of the incident did not recall details, but she testified that she would have checked with Andrews before placing another guest in the room next to Andrews.

Day 8 – March 3, 2016

The defense ended its case by calling former NFL player and ESPN sportscaster, Jesse Palmer. Palmer testified that Andrews did very well in her first game back after the incident and that Andrews received jeers from fans before and after the incident. The defense then rested its case.

Closing arguments will be made on March 9, 2016, and the jury will get the case shortly thereafter.

Today is February 29, 2016, which is unusual, because February typically only has 28 days. Apparently, the purpose of a leap year is that “the number of Earth’s revolutions about its own axis, or days, is not equal to or connected in any way to how long it takes for the Earth to get around the sun.” The full explanation is more extensive and exceeds the scope of this post, but it is worth the read for those who are interested. Here, we examine the appearance of the leap year in reported case law.

It should not be surprising that courts have faced leap year related excuses for late filings. A plaintiff has allegedly waived the right to file a discovery-related motion, because the plaintiff allegedly “calendared the due date of the motion as Monday, March 26, 2012, and filed it that day based on a lack of awareness that 2012 is a leap year.” Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357-CIV, 2012 U.S. Dist. LEXIS 56272, at *3 (S.D. Fla. Apr. 23, 2012). Unfortunately, the Court ruled that “[t]his type of error, in and of itself, however, does not provide good cause for out-of-time filing.” Id. A notice of appeal was not timely filed, despite the excuse that “the late filing” was caused in part by the appellant’s alleged “miscalculation of the time due to Leap Year . . . .” Hardman v. Comm’r, No. 08-1118, 2008 U.S. App. LEXIS 13613, at *1 (D.C. Cir. June 24, 2008). A leap year was not a basis for equitable tolling, despite the fact that the leap year “caused the statute of limitations to begin running on March 29, 2004, instead of March 30, 2004.” Simpson v. Wolfenbarger, No. 05-CV-71298-DT, 2006 U.S. Dist. LEXIS 6509, at *12 (E.D. Mich. Feb. 21, 2006).

The leap year has also spawned litigation. Litigation has arisen out of a dispute as to how an employer’s payroll practices should be adjusted to deal with the fact that “every eleven (11) years, a leap year causes a 27th pay period to occur.” Matter of Cty. of Erie v. Faculty Fedn. of Erie Cmty. Coll., 2014 NY Slip Op 24158, ¶ 2, 44 Misc. 3d 593, 594, 988 N.Y.S.2d 449, 450 (Sup. Ct.). A court has refused to give a prisoner “an extra day of credit for each leap year that he has served or will serve.” Keystone v. Johnson, Civil Action No. 7:06-cv-00503, 2006 U.S. Dist. LEXIS 63778, at *3 (W.D. Va. Sep. 7, 2006).

Leap years have also thrown wrenches into interest calculations. Kreisler & Kreisler, LLC v. Nat’l City Bank, 657 F.3d 729, 732 (8th Cir. 2011) (“Because the numerator and denominator do not match as they do in the other methods, the 365/360 method increases the effective interest rate by .01389 in a non leap year.”).

The above is by no means an exhaustive list of leap year appearances in litigation, but it does show that even the leap year is not immune from being dragged into the courthouse.

CNN reports that St. Louis jury recently awarded $72 million to the family of Jackie Fox, who died of ovarian cancer in 2015 at the age of 62.  Fox allegedly used talcum powder manufactured and sold by Johnson & Johnson for 50 years. Fox’s deadly cancer was allegedly caused by exposure to carcinogens in the talcum powder. Apparently, the case is part of a wider lawsuit brought by dozens of women against Johnson & Johnson. Allegedly, Johnson & Johnson knew about the risks of using products containing talc, but failed to warn consumers about the risks.

Johnson & Johnson stands by its product and its conduct.  A spokesperson recently stated: “The recent U.S. verdict goes against decades of sound science proving the safety of talc as a cosmetic ingredient in multiple products, and while we sympathize with the family of the plaintiff, we strongly disagree with the outcome.” For those who are unfamiliar with talc, it “is a naturally occurring mineral composed of magnesium, silicon, oxygen, and hydrogen. It’s used to absorb moisture in many kinds of cosmetic products, from baby powder to make up.”

Reportedly, after talc product manufacturers learned that the talc they were using contained asbestos in the 1970’s, “all manufacturers stopped using this kind of talc. Instead they swapped to corn starch, which is currently used by most US companies and has never been linked to cancer in any way – or asbestos-free talc.” Apparently, talc is generally believed to be safe, but some studies have “suggested it could cause ovarian cancer if used on the female genital area.” Specifically, some scientists “have suggested that talc particles could travel to the ovaries, irritate them and cause inflammation –  potentially increasing the risk of certain cancers.” The criticism of these reports, though, is that they are flawed because they “often relied on people who previously used talc that could have contained asbestos.”

According to the American Cancer Society, the International Agency for Research on Cancer has classified inhaled (asbestos-free) talc as not carcinogenic, but “based on limited evidence from human studies of a link to ovarian cancer, IARC classifies the perineal (genital) use of talc-based body powder as ‘possibly carcinogenic to humans.'”

So, it appears that the link between talc exposure and cancer is suspect at this point, but the large verdict will likely spawn many more lawsuits. Toxic tort lawyers should familiarize themselves with the issues surrounding talc exposure cases, because the odds are pretty good that the talc lawsuits may be coming to a courtroom near you.

We are frequently approached by law students and aspiring law students for advice. Of course, we advise that they should make good grades and not borrow one penny more than needed. That is common sense. What we also advise, and what is not common sense, is that for aspiring litigators, participate in moot court.

Like many others, the aspiring law student enters law school with visions of Perry Mason courtroom moments and dramatic cross examinations. Until recent decades, expectations were pretty close to reality. Now, though, as various outlets have recently reported, very few civil cases go to trial compared to those in the past. However, some cases still make it to a jury, and one must be prepared to try those cases when they do.  And if a trial doesn’t go your way, you may need to appeal. If most cases settle before trial, it goes without saying that there are fewer appeals, as well. To further complicate matters, in order to be adequately prepared to try a case or argue an appeal, one probably needs courtroom experience. So how does one obtain trial or appellate experience if cases rarely go to trial? One answer is moot court.

This author was fortunate to have participated in a well-organized, well-run moot court program that involved appellate court competitions with real appellate judges, trial competitions with real juries and trial judges, and various other simulated courtroom experiences that were as close to real life as you can get without someone’s real life or real money being on the line. This author spent the second and third year of law school participating in every appellate and trial competition that the team would allow. And for each competition, there were dozens of practices during which lawyers from the community watched and provided criticism. The result was that, when this author transitioned from law school to firm life, he had hundreds of trial and appellate experiences under his belt. As a result, the “first time” he was asked to argue a motion or try the case, it was not nearly as terrifying a proposition as it could have been otherwise. Where some people would need to overcome the initial fear of the unknown, and ascertain the basics of how the courtroom worked, he was able to focus on the merits of the argument, trial, et cetera, and walk into the courtroom with confidence.

This post is not meant to downplay the importance of learning legal principles in the classroom or the importance of learning how to write briefs. The point, though, is that there is no shortage of brief writing experience to be had for law firm associates, and unless you practice criminal law, you will need to learn the law in your practice area when you transition to firm life anyway. For aspiring litigators, the most important thing you can do in law school is to devour as many appellate and trial experiences as you can in the short amount of time you are in law school. You will be glad you did the first time a partner hands you a file and tells you the case is up for trial in a week. Additionally, for firms like ours who pride themselves in being trial ready on every case, the trial is the end goal, and if the litigator understands the end goal, it will help to focus all of the legal research and fact finding efforts on what is important.

We frequently post on social media issues, including issues pertaining to Facebook. As we recently reported, an article authored by our editor, Jim Dedman, was recently published in the January 2016 edition of The Inside Scoop, the newsletter of the North Carolina Bar Association’s Corporate Counsel section.

But we’ve got more news on this front.

Facebook is apparently in the news again for legal reasons following “[a] report commissioned by the Belgian privacy commission [that] as found that Facebook is acting in violation of European law, despite updating its privacy policy.” The study at issue was conducted by the Centre of Interdisciplinary Law and ICT at the University of Leuven in Belgium. The report “claimed that Facebook’s privacy policy update in January had only expanded older policy and practices, and found that it still violates European consumer protection law.” Specifically, a number of provisions in the new privacy policy still fail to comply with the Unfair Contract Terms Directive in a number of ways, including but not limited to:

• Placing too much burden on Facebook users to navigate Facebook’s “complex web of settings in search of potential opt-outs”
• Providing no mechanism by which users can stop Facebook from collecting location information on users via its smartphone app besides stopping location access on the phone via the mobile operating system
• Offering no choice regarding the user’s appearance in “sponsored stories” or sharing of data pertaining to location.

Facebook has apparently met with Bart Tommelein, the Belgian privacy minister, to discuss the issues raised in the report, and to convey its position that its new privacy policy does not violate any laws.  Facebook is supposedly being investigated by various other European nations for various privacy infractions as well.

Two years ago, we reported on a lawsuit filed by Josh Finkelman against the NFL. We summarized the allegations of the lawsuit as follows:

. . . New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.

Finkelman was also joined by another plaintiff, Ben Hoch-Parker. The NFL filed a motion to dismiss, arguing that Hoch-Parker lacked standing (because he had not actually purchased a ticket). The NFL also argued that since “[n]either plaintiff alleges that he attempted to purchase tickets at face value through the NFL lottery . . . plaintiffs cannot demonstrate that defendants caused them to pay . . . above face value for their tickets.”

Reportedly, in early 2015, federal judge Peter G. Sheridan granted the NFL’s motion to dismiss the class action lawsuit. In late 2015, the Third Circuit Court of Appeals apparently agreed to hear the Plaintiffs’ appeal, and a three judge panel of the Third Circuit recently affirmed the district court, “concluding that the plaintiffs lacked standing to sue in federal court.”

We did not reach out to the lawyers involved for comments, but we assume the lawyers who represented the NFL would provide comments similar to the following:

We would also like to add – GO PANTHERS!

South Carolina’s statute of repose for improvements to real property  provides that “[n]o actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than eight years after substantial completion of the improvement.” S.C. Code Ann. § 15-3-640. Manufacturers of products which become improvements to real property may also receive the benefit of the statute of repose if certain conditions are satisfied.  S. Carolina Pipeline Corp. v. Lone Star Steel Co., 345 S.C. 151, 155, 546 S.E.2d 654, 656-57 (2001).

As we have previously reported, whether a product issue qualifies as an improvement requires an examination of the following factors set forth by the South Carolina Supreme Court: 1) whether the product made the real property more valuable to the owner; (2) whether it involved the investment of labor and money, and (3) whether it is permanent.  Id.  A recent summary judgment motion filed  in Roger Murray and Judith Murray v. D.R. Horton, Inc., C.A. No. 4:15-cv-00191-RBH, which is pending in the U.S. District Court for the District of South Carolina hinged upon whether an oven was an improvement to real property.

The Murrays apparently purchased this home in Murrells Inlet, South Carolina, which according to the certificate of occupancy, was completed on December 4, 2006.

On November 26, 2014, the Murrays were boiling water in a pot on top of the stove in preparation for their Thanksgiving meal. Mr. Murray apparently noticed that the oven light was no longer working, so he opened the oven door to replace the bulb. While Mr. Murray was leaning inside the oven to replace the light bulb, the range allegedly tipped forward, causing the pot of boiling water to overturn, causing him to sustain third degree burns on fifteen percent of his body.

The Murrays filed suit against the homebuilder on December 9, 2014 (eight years and five days after the certificate of occupancy for the home was issued), alleging that the incident was caused by the failure to install an “anti-tip bracket” on the rear foot of the cooking range. The Defendant moved for summary judgment based upon the aforementioned statute of repose. The parties acknowledged that the oven made the property more valuable and that the installation of the oven involved the investment of time and money, so the only issue for the Court to decide was whether the oven “was permanent.” In considering the motion, the Court found an absence of precedent on the issue of whether a kitchen appliance qualifies as an improvement, There is appliance repair services in Baltimore that one could check out. The Court noted that discovery was ongoing and that “no materials have been filed with the Court resolving the factual issue of whether the anti-tip bracket was or was not installed.” The Court denied the motion for summary judgment based on those considerations.

This is an interesting case. The basis of the Plaintiff’s lawsuit is that the oven was not properly affixed to the real property. So, it appears that the real question here is whether something that was supposed to be affixed to the real property still qualifies as an improvement, even if it was never actually affixed to the real property.

Note that we were recently interviewed by SC Lawyers Weekly regarding the statute of repose issues raised in the Murray case.