Throughout history, the legal profession has inspired great films. We have covered many of these films, such as My Cousin Vinny, and we have even had the opportunity to interview individuals involved with legally-themed films. We have recently asked ourselves, “What are the best one liners from legal films?”

Here is the list we came up with (thanks to heavy borrowing from other lists such as this one and this one):

The Paper Chase (1973): “Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”

The Paper Chase (1973): “Mr. Hart, you’re still not speaking loud enough. Will you stand? Speak louder, Mr. Hart! Fill the room with your intelligence!”

The People v. Larry Flynt (1996): “I’m Your Dream Client. I’m the most fun, I’m rich and I’m always in trouble.”

A Few Good Men (1992): “You can’t handle the truth!”

The Verdict (1982): “You are the law.”

Intolerable Cruelty (2003): Freddy Bender: “Objection, Your Honor: strangling the witness.” Judge Marva Munson: “I’m going to allow it.”

This is by no means an exhaustive list; however, it does include some of our favorites. We encourage our readers to share their favorites as well.

Before now, Death Proof was simply the title of an action-packed Quentin Tarantino thriller from 2007. Not anymore says Volvo! The engineers at Volvo have decided not to stop at fully-autonomous vehicles for which they accept full liability in the event of an accident. Volvo has now reportedly pledged that “[b]y 2020, no one will be killed or seriously injured in a new Volvo car or SUV.” Wow, this is a bold claim. What is more shocking, however, is that there are apparently already some vehicles which are “fatality-free.” Behold:

According to data from the Insurance Institute for Highway Safety, there are nine vehicle models — including the Volvo XC90 — in which no one in the United States has died in at least four years.

Apparently, the technology that inspires Volvo’s confidence is the autonomous driving technology intended to remove the possibility of human error from the driving equation. But alas, there is a caveat:

If someone really wants to hurt themselves, or is just really, really stupid… well, Volvo can’t do anything about that. But, assuming you’re not a suicidal maniac or a total idiot, in four years, you’ll be safer driving a new Volvo than you are climbing a ladder to screw in a light bulb.

Perhaps we are a bit jaded, but we would suggest that the prior paragraph would be more accurate if the “ifs” are changed to “whens.” It may also be difficult to assume away “suicidal maniacs.” So what does this mean for the legal field? It may be that there will be less driver versus driver automobile accident cases litigated, and that some portion of those will be replaced by product liability cases against the automotive manufacturers.  Apparently, we will know one way or the other by 2020ish.

The recent lead-contaminated water crisis in Flint, Michigan has led to discussions regarding water quality, pollution, and environmental regulations. We have learned from discussions in which we have been involved that the general public (and most lawyers) are unfamiliar with many of the issues surrounding large environmental disasters. Nor are most people with the action(s) taken by the U.S. government to clean up environmental contamination. For example, those who are not involved with toxic tort litigation may have heard of EPA’s Superfund and CERCLA, but may not know what these terms mean.  The following is a brief overview of EPA’s Superfund program, for those who are interested.

After a series of large environmental disasters, including Love Canal in 1979, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),  which “provides a Federal ‘Superfund’ to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.” The EPA was also granted the authority to seek out potentially responsible parties (PRP’s) and attempt to force them to carry out cleanup efforts and/or to fund cleanup efforts. According to the United States Environmental Protection Agency (EPA), “EPA’s Superfund program is responsible for cleaning up some of the nation’s most contaminated land and responding to environmental emergencies, oil spills and natural disasters. To protect public health and the environment, the Superfund program focuses on making a visible and lasting difference in communities, ensuring that people can live and work in healthy, vibrant places.” The EPA was reauthorized to carry out these functions in all fifty states with the passage of the Superfund Amendments and Reauthorization Act (SARA) of 1986.

When the EPA becomes aware of “known releases or threatened releases of hazardous substances, pollutants, or contaminants” at a site, the site is placed on the National Priorities List (NPL).  PRP’s are then identified and pursued by the EPA.  Various defenses are available to PRP’s.  The EPA has been involved with thousands of Superfund sites all over the country, a list of which is located here.  Apparently, some of the most common contaminants at Superfund sites include lead, asbestos, dioxin, and radiation, generally.

Many in the United States reportedly experienced a record-setting, warm holiday season this December, and some are asking whether climate change is to blame. The discussion sparked our curiosity as to what if any climate change-related litigation may be brewing.

First of all, what is climate change? The rocket scientists at NASA have provided the following definition of climate change:

Climate change is a change in the usual weather found in a place. This could be a change in how much rain a place usually gets in a year. Or it could be a change in a place’s usual temperature for a month or season.

Climate change is also a change in Earth’s climate. This could be a change in Earth’s usual temperature. Or it could be a change in where rain and snow usually fall on Earth.

Weather can change in just a few hours. Climate takes hundreds or even millions of years to change.

This concept, seemingly innocuous on its face, is quite controversial in the United States, and according to a recent article on the subject, hundreds of climate change-related lawsuits have been brought in the United States. Apparently, while “[m]ost cases were brought by individuals or companies against the government,” there have been some suits “brought by individuals and groups seeking more climate change regulations or actions from government” and “other suits . . . to halt the enforcement of climate change regulations.”

One of the more interesting lawsuits that we ran across is a subrogation class action filed by Illinois Farmers Insurance Co., “accusing scores of Illinois municipalities of doing little to prepare for climate change and avoid storm losses its policyholders suffered.” Farmers alleged that the defendants “had adequate time and opportunity to plan, prestage and take other actions before the occurrence rainfall to maximize stormwater storage and/or transportation capacity within its stormwater system(s) and sanitary water sewer systems.” The case drew considerable attention, and many reportedly speculated that the case would serve as a bellwether case that could “unleash a wave of similar litigation.” Farmers reportedly decided to drop the lawsuit due to the fact that the litigation “gained the attention of the wider public.” Farmers added that it believed that the lawsuit “brought important issues to the attention of the respective cities and counties and that our policyholders’ interests will be protected by the local governments going forward.”

For a more in-depth review of pending climate change litigation, a chart prepared by a United States law firm purports to track the spate of climate change lawsuits which are apparently pending in the United States.

We have previously discussed the popular Reptile litigation strategy utilized by the Plaintiff’s bar here and here, and we have even posed the question of whether defense lawyers can co-opt the Reptile strategy. Until recently, there was minimal case law on the Reptile. Motions in limine to exclude the Reptile were left unaddressed, and the courts were otherwise silent as to the Reptile. Recently, however, we have noticed an increasing number of Reptile-related rulings, from which we provide snip-its below:

• The Court denied a motion to exclude Reptile tactics where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, the Court noted that “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned.”  Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015).

• “BSC’s Motion to Preclude “Reptile” Litigation Tactics is DENIED.” Winebarger v. Boston Sci. Corp., No. 3:15CV211-RLV, 2015 WL 5567578, at *10 (W.D.N.C. Sept. 22, 2015).

• Granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy.” Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. September 9, 2015).

• Granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other “safety rules.” Palmer v. Virginia Orthopaedic, P.C.,No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015).

• Motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’ and have agreed to this.” Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015).

• Motion to exclude Reptile denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule.” Scheirman v. Picerno,No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015).

• Denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician “safety rules”, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that jury should “send a message” or otherwise punish Defendant.” Hutson v. Rooney, MD,No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. April 14, 2015).

• Trial court that was admittedly “handicapped because of its unfamiliarity with the Reptile Strategy” denied motion to exclude Reptile tactics. Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. March 15, 2015).
  

• “Defendant’s Motion in Limine to Exclude the ‘Reptile’ should be and hereby is denied.” Upton v. Northwest Arkansas Hospitals, LLC, No. CV-2010-270-4, 2012 WL 12055084 (Ark. Cir. Ct. March 8, 2012).

So, it appears from the non-exhaustive list of Reptile-related opinions that Courts are virtually split on whether to keep out Reptile tactics on a motion in limine. Accordingly, lawyers on both sides of the “v” should be familiar with the strategy, as the Reptile practitioners apparently continue to obtain sizable verdicts:

Reportedly, when Texas plumber Mark Oberholtzer sold his 2005 Ford F-250 Super Cab to a Houston Ford dealership, he never expected that he would subsequently see his truck being used by Islamic militants in Syria’s civil war:

So how did his truck end up in Syria? In October 2013, Oberholtzer took the truck to AutoNation Ford Gulf Freeway in Houston, Texas to trade it in for a 2012 Ford F-250. Oberholtzer alleges that he initially intended to remove the “Mark-1 Plumbing” decal from the truck, but the salesman stopped him on the basis that removing the decals would damage the vehicle. The truck was then allegedly auctioned off in November 2013 and subsequently shipped from Houston to Mersin, Turkey. Approximately a year later, the above photo was tweeted by a contributor to the Long War Journal. Oberholtzer did not expect to see his truck again under those circumstances.

Nor did Oberholtzer expect to experience an apparent exception to the old adage that “any publicity is good publicity.” Apparently, in addition to the company name, the side of the truck bore Oberholtzer’s phone number on the door, including the area code. According to the lawsuit filed by Oberholtzer, on December 15, 2014, the day the plumbing truck photo was tweeted, “Oberholtzers’s cell phone, work phone and office phone had ‘received over 1,000 phone calls from around the nation.’”  According to the complaint:

These phone calls were in large part harassing and contained countless threats of violence, property harm, injury and even death. These phone calls included, but were not limited to, individuals who were: (a) irate and yelling expletives at whomever answered the phone; (b) degrading to whomever answered the phone regarding their stupidity; (c) singing in Arabic for the duration of the phone call or voice message recording; (d) making threats of injury or death against Mark-1’s employees, family, children, and grandchildren in violent, lurid and grossly specific terms; and, (e) directing expletive-laced death threats to whomever answered the phone.

Oberholtzer allegedly shut down his business of Jet Plumbers for a period of time, and he has been visited by federal officials who have supposedly advised him to “protect himself.” When his truck was featured on the final episode of “The Colbert Report,” the harassment and threatening phone calls apparently reached a fever pitch.

Oberholtzer seeks $1,000.000.00 for invasion of privacy and appropriation of name.

As we previously reported, Uber is currently involved in a knock-down-drag-out, multi-billion dollar class action over, among other things, its classification of its drivers as independent contractors as opposed to employees. One of the major developments in the class’s favor was a ruling by the trial court that drivers who had signed contracts which contained an arbitration provision could be included in the class. Reportedly, Uber has moved swiftly to strengthen its arbitration provision going forward: “Uber on Friday sent all its drivers nationwide a new, 21-page legal agreement that bars them from participating in class action lawsuits against the company and instead requires them to enter into arbitration in the case of disputes.”

The class recently attempted to block the new agreement, however.  According to lawyers representing the class, “[b]y distributing these revised agreements this morning, two days after the court’s ruling, Uber was obviously trying to undercut the court’s decision on Wednesday that its arbitration agreement was illegal and unenforceable.” According to representatives of Uber, “the new driver agreement was necessary because on Wednesday U.S. District Judge Edward Chen ruled that part of the agreement Uber drivers had been signing was not enforceable, rendering the entire agreement unenforceable.”

Additionally, “the company said the new agreement is not meant to keep current California drivers from joining the lawsuit.” The new agreement still makes it illegal for Uber to retaliate against any driver that opted out of arbitration.

Apparently, drivers can opt out of the new agreement by sending a letter or email to optout@uber.com and continuing to drive for Uber.

For those unfamiliar with Uber, it is essentially an app that connects those needing a ride with Uber-affiliated drivers who are in the area and available to provide a ride. The price of a ride is substantially less than one in a taxi, and thanks to driver background checks, the ability of customers to rate drivers, and the requirement that a vehicle be relatively new and in good condition, the quality of the ride normally exceeds that of a ride in a taxi. Full disclosure: We love Uber and use it religiously.

The popularity of Uber seems to grow exponentially by the day, and there are apparently 150,000 Uber drivers worldwide. One of the benefits to Uber drivers is that they can make their own schedule by signing on to provide rides when they want to work and signing off when they decide to finish their shift. Reportedly, driving for Uber can be lucrative, with hourly wages reaching between $30 and $43 an hour in New York City, for example.

Uber is able to provide this flexibility to its drivers by, among other things, treating them as independent contractors as opposed to regular employees. Recently, however, a class action was filed on behalf of Uber drivers seeking to challenge this practice. According to the informational website created for the class action, the following is the basis for the lawsuit:

Uber drivers have filed a class action lawsuit claiming they have been misclassified as independent contractors and are entitled to be reimbursed for their expenses that Uber should have to pay, like for gas and vehicle maintenance. The lawsuit also challenges Uber’s practice of telling passengers that the gratuity is included and not to tip the drivers, even though you are not getting a tip!!

Unfortunately for Uber, the lawsuit is allegedly valued at $62.5 billion, and a recent ruling by the judge presiding over the case has expanded the class to include “Uber drivers who agreed as part of their contracts to settle disputes in arbitration.” The good news for Uber, though, is that the judge excluded from the class “drivers who work for limo companies—which includes one of the three plaintiffs in the original suit; and individuals who have registered to drive for Uber under a corporate name.”

It will be interesting to see how this one develops. At first glance, this appears to be one of those lawsuits which attempts to criminalize the business model of the defendant. We hope the suit is unsuccessful, as we like the way Uber does business, and we hope that its business continues on.

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.

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.