Here we go again. Another privacy-related Facebook legal issue has arisen.

In a disability fraud case in New York, in which “more than 130 police officers and other public workers in New York City whose disability claims allegedly conflicted with information about life activities on their Facebook accounts,” Facebook has reportedly been told by a New York appellate court that it lacks standing to challenge subpoenas for the users’ personal information. Although Facebook has produced the information as ordered, it does not plan to give up on the issue. In fact, according to Bloomberg, Facebook released the following statement:

We continue to believe that overly broad search warrants—granting the government the ability to keep hundreds of people’s account information indefinitely—are unconstitutional and raise important concerns about the privacy of people’s online information.

Apparently, Facebook has not decided whether to appeal the ruling further.

How much information does Facebook maintain on its users, anyway?  According to a Forbes article from several years ago, the answer is A LOT. The personal data stored by Facebook includes everything from “every person who has ever poked you” to “a list of the machines that [the user] has used Facebook from, how often [the user] has signed in from the machine, as well as a list of all the other Facebookers who have logged in on that machine.” An exemplar full report discussed by the Forbes article was over 800 pages long.

If you are curious about how to download all of your Facebook data, Facebook tells you how to do so here:

This information, of course, can be helpful to lawyers when fashioning interrogatories and requests for production of documents pertaining to Facebook data. As you may recall, we at Abnormal Use have covered many Facebook-related legal topics in the past, which can be accessed here.

Reportedly, California federal judge John A. Kronstadt has signed an order setting aside a November Jury verdict in favor of Defendant McNeil-PPC Inc. in light of some funny business by a member of the jury.  The substance of the Plaintiff’s claim was as follows:

Kindra Robertson filed the suit against McNeil in 2011 after her 11-year-old son Tyler died of sepsis caused by pneumonia several days after ingesting Children’s Tylenol from a batch allegedly included in a voluntary recall in September 2009, according to the complaint. Robertson had the bottle tested for contamination, which was found to be positive for bacteria.

The juror in question “initially said in a declaration presented in support of the motion for a new trial that she told other jurors that the Tylenol given to Robertson’s son hadn’t been recalled.” Apparently, this research “helped change [the juror’s] vote to the defense.” The Judge was apparently concerned because the verdict needed to be unanimous, and thus, the juror at issue being influenced by the verdict was important on its own.  There was also concern that the juror communicating this information to other jurors may have influenced the other jurors to whom the juror communicated the information.

It is fairly common knowledge at this point that juror’s perform outside research despite being instructed by the Court not to do so.  Though it is all too familiar, it remains improper, and when it influences the outcome of the trial, it may give everyone the opportunity to try the case again in front of a new group of jurors, as it did in this case.

(Hat Tip: Law360).

We here at Abnormal Use recently watched a TED talk by memory expert Elizabeth Loftus titled, “How Reliable Is Your Memory?” The fascinating talk provided an overview of research by cognitive scientists on why people remember some things but not others, why two people can remember the same event differently, and how people can even innocently recall an event falsely. Loftus provided several interesting examples of “false recollections” that she has come across in her research, including studies in which researchers planted the idea in the minds of subjects that the subjects had been victims of violent crimes in the past. The subjects were not intentionally lying; rather, they genuinely believed that the event occurred when it had not. Loftus explains in her paper “How To Tell If A Particular Memory Is True Or False,” that there are two types of lying that people engage in: intentional lying, and lying “without knowing they are lying.”

As Morton Durbin explains in detail in a recent, well-written DRI article, these two types of lying manifest in asbestos litigation in the context of product identification.  As noted in an excellent Mealey’s Litigation Report article from 2012, insulation manufacturer defendants such as Johns Manville were the primary defendants in asbestos litigation until they all filed for bankruptcy. Prior to the insulation manufacturer bankruptcies, all plaintiffs recalled the insulation manufacturers’ products.  As noted by Judge George Hodges in his pivotal order in the Garlock bankruptcy case, after the wave of insulation manufacturer bankruptcies, “the evidence of exposure to those insulation companies’ products also ‘disappeared.’” In re Garlock Sealing Technologies, LLC, 504 B.R. 71, 84 (Bankr. W.D.N.C. 2014).  For those who have not read Judge Hodges’ order, we would recommend taking Judge Peggy Ableman’s advice and reading the decision. The order details the apparent fraudulent lengths to which Plaintiffs’ lawyers went to conceal exposures to bankrupt companies’ products and to direct attention to fringe defendants. How can it be that (as learned in discovery in the Garlock case) Plaintiffs recalled an average of two bankrupt defendants’ products during the tort case but subsequently remembered an average of 19 bankrupt defendants’ products when it was time to file bankruptcy trust claims? Is the lying intentional, innocent, or some combination thereof?

Perhaps the better question is not whether the lying is intentional or “innocent” but how do defense lawyers successfully expose and/or combat it?  Among other strategies, Mr. Durbin explained that defense lawyers should make a clear record of all of the details that the plaintiff recalls about solvent defendants and contrast that with the dearth of details that the Plaintiff recalls about the bankrupt defendants’ products.  There is a growing trend among asbestos defendants to hire “memory experts” to address these issues.  Placing settled defendants and bankrupt defendants on the jury verdict form would be quite effective in addressing the issue, as well.

Exhibits and other documents from the Garlock bankruptcy trial have been recently unsealed and can be downloaded here.

As Reuters recently reported:

A subsidiary of BorgWarner Inc is off the hook for a massive $32.5 million punitive damage award in an asbestos lawsuit, after a California state appeals court ruled plaintiffs had failed to delve deeply enough into the company’s financial condition.

Reportedly, GM Shareholders filed suit against the company in Delaware Chancery Court, alleging that the “board of directors did not perform its duty in preventing the mounting losses from the sale of vehicles with faulty and deadly ignition switches.” Specifically, the shareholders sought to recover “losses due to expenses, fines, lawsuits and damages to the company as a result of the 119 deaths and 234 injuries associated with faulty parts and a huge and costly recall.” GM filed a motion to dismiss, which was granted by Delaware Chancery Court Judge Sam Glasscock III.  Judge Glasscock found that “the GM board ‘did not consciously fail to monitor’ or oversee GM operations and thus he could not find ‘substantial likelihood of personal liability on the part of a majority of the board.'” Judge Glasscock also “concluded GM had adequate risk-assessment systems in place and there were not obvious problems or ‘red flags’ that the board knew of but ignored, nor was there evidence of bad faith on the part of the directors.” Apparently, Judge Glasscock’s decision could have impact outside of the Delaware case, as there are three “similar cases” pending in Michigan, which were “waiting for the outcome of the Delaware case.” We’ll keep our eyes on these cases for you.

On June 22, 2015, Judge C. Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama, Northeastern Division, certified two questions to the Alabama Supreme Court in a take-home asbestos case.  The order is located here. Certification of the two questions followed a bench trial, in which the the Tennessee Valley Authority (TVA) was the sole remaining defendant.  The facts were similar to most take home asbestos cases.

Barbara Bobo was diagnosed with, and eventually died from, malignant pleural mesothelioma, which was allegedly caused by exposure to asbestos fibers on her husband’s clothing. Suit was filed by Ms. Bobo prior to her death, and following Ms. Bobo’s death, Ms. Bobo’s daughters, co-personal representatives, were substituted as Plaintiffs.  The Plaintiffs alleged that Ms. Bobo’s husband brought home asbestos fibers on his clothing while working at a TVA nuclear facility in Alabama from 1975 until 1997, and that Ms. Bobo was exposed to those fibers while laundering Mr. Bobo’s clothing, among other ways. During the time Mr. Bobo was a TVA employee, he performed a variety of tasks at the TVA facility, some of which included assisting insulators with work that required cleaning up and otherwise manipulating asbestos. Following the bench trial, Judge Smith found that “[t]he preponderance of the evidence presented at trial established that a significant quantify of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue while having received good rates on wholesale insulation at the time” at the TVA facility.  The Court also found that Mr. Bobo passed away in 1997 due to “lung cancer induced by asbestosis.”  It was undisputed that Ms. Bobo could have been exposed to asbestos from sources other than the TVA.

In order to decide the case, Judge Smith required clarity on the law of duty and causation in a take home asbestos case.  Accordingly, Judge Smith certified two questions to the Alabama Supreme Court:

1. Whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to a toxic agent, such as asbestos, used during the course of the property owner’s business? and
2. What causation standard applies when multiple exposures to a toxic agent, such as asbestos, combined to produce the Plaintiff’s injury?

The parties’ arguments pertaining to the duty issue centered around major take home cases in other states, including California’s Campbell, which we discussed here.  On the causation issue, the Plaintiff argued that the “substantial contributing factor” test should apply, while TVA argued for a more stringent standard, such as the standard set forth in Lohrman, which we discussed here and here.

For obvious reasons, the result of this case will have an enormous impact on take home exposure cases in Alabama.

We recently ran a post on a Chicago man’s lawsuit against McDonald’s, which alleged, among other things, that McDonald’s failed to test a chicken nugget for bone shards before serving the chicken nugget to him.  Therein, we asked the following tough questions:

How does one test a chicken nugget for bone shards before serving it to the customer? Is McDonald’s supposed to use the x-ray machine that TSA uses at the airport? Is there a chicken nugget bone shard test kit that we don’t know about?

We received a response from an unusual source. According to The Wall Street Journal’s Law Blog, there is actually a chicken nugget x-ray machine:

‘There’s very accurate X-ray detection technology to detect bones in chicken products,’ says Rich Cisek the chief operating officer of InspX Corp. a California-based manufacturer of X-ray inspection machines for the food and beverage industry.

Mr. Cisek told Law Blog that so-called ‘top-down’ X-ray machines, which collect images of food products zooming by on a conveyor, are well-suited for nugget inspections.

We stand corrected (and appreciate the author of that piece citing our original blog post on the topic).

That said, we here at Abnormal Use would like to ask a follow up question.  In a time when jobs are difficult to find, should we replace potential American food testing jobs with automation?  Reportedly, while “[e]mploying food tasters . . . may seem like an anachronism in the 21st century, . . . the profession has enjoyed a recent resurgence.” As noted by a recent New York Times article on the extravagant food testing expenditures for which the current president of Turkey is responsible, “[n]early every world leader . . . takes precautions in the matter of food safety . . . .”  The article goes on to say that the current president of Turkey employs ” five on-site experts . . . on duty for 14 hours a day, analyzing the president’s meals for suspicious substances . . . .”

If we seek to impose a duty on fast food chains to inspect their food before serving it to customers, shouldn’t we create some jobs in the process?  Our fear is that chicken nugget x-ray machines could lead to the extinction of a workforce of food tasters who have perfected the craft for centuries.  The point is, should we, just because we can?

A Chicago man recently filed a lawsuit against McDonald’s to recover damages incurred after he allegedly bit into a chicken nugget which contained shards of bone. Lawsuits over objects in food which are not supposed to be there are common, so no surprise there.  The interesting part is that the man has reportedly joined a cause of action for failure to test the chicken nugget:

The suit contends that McDonald’s employees failed to inspect and test the Chicken McNugget in question for bone fragments prior to serving it to Anderson.

This is where he is going to lose those initially sympathetic to his cause. How does one test a chicken nugget for bone shards before serving it to the customer? Is McDonald’s supposed to use the x-ray machine that TSA uses at the airport? Is there a chicken nugget bone shard test kit that we don’t know about?

On a personal note, I know that I have been using this purported duty to test for a while now to trick my daughter. I make her a sandwich, then tell her that I need to take a bite first to make sure it’s not poisoned. It works every time, probably because she is three. I’ve been concerned that any day now she’s going to detect the ruse and I won’t be able to perpetrate the scheme any longer. However, if this suit goes anywhere, I may be forced to continue to take a test bite of every sandwich before serving it . . . for liability reasons . . . .

About this time last year, we ran a post inspired by participation in iCivics Day, which involves lawyers speaking at various schools around the community about the mechanics of the United States government.  This week, we participated in iCivics Day again, and we are again inspired to post regarding the experience.

Obviously, it is never a bad thing to volunteer in the community. The community benefits, and so does the volunteer. If you do nothing else in the community, we would argue that every lawyer should speak to a group of children about being a lawyer.

Children genuinely care about what lawyers do. They want to know war stories. They want to know what a lawyer does on a daily basis.  There will inevitably be children in the class who have already decided to be lawyers, and they want to know how to become one.

Perhaps the most fulfilling part of the experience is that children understand that lawyers are part of one of the most noble and honorable professions in the free world. Lawyers work with the basic fabric of our civilization – the law. Lawyers test the legal system to make sure it is still working. Lawyers defend laws. Lawyers challenge laws. Lawyers ensure that their clients’ legal rights are protected, and that accordingly, everyone’s rights are protected.

Bottom line: Get out there and talk to some students about what we do.  You will like it, the kids will like it, and the teacher will like it.  If you want to know more about iCivics day, and what you can do to get involved, you can visit the iCivics website, or we are sure that our own Lindsay Joyner would love to tell you more about how to become involved.

Plaintiffs often send notice of claim and pre-suit demands. Occasionally, it is a good idea to resolve a claim before filing suit, but more often than not, pre-suit resolution is not possible, and everyone knows that a lawsuit will eventually be filed. Typically, there will be an extended silence following the breakdown of pre-suit negotiations, and nothing else happens until the plaintiff files the lawsuit, which often happens the day before the statute of limitations runs. Meanwhile, the Plaintiff is free to collect evidence and otherwise build his or her case, choose the best venue for the case, and examine other relevant issues.  All the while, the defendant waits in the dark, at least procedurally. But what if a potential defendant could decide when and where the dispute is taken to  court?  What if the defendant could begin discovery while recollections and evidence remain fresh? Perhaps the South Carolina Uniform Declaratory Judgment Act (SCUDJA) provides the opportunity to do so.

Accordingly, we’ve been doing some brainstorming on this topic.

Declaratory judgments are typically filed to settle insurance coverage disputes, constitutional issues, and other nontraditional legal disputes. However, the SCUDJA bestows upon courts the power to declare “rights, status, and other legal relationships whether or not further relief is or could be claimed.”  SC Code Ann § 15-53-20.  A DJ can be used to ask the court to construe a contract “before or after there has been a breach thereof.”  SC Code Ann § 15-53-40. A DJ can be used to try and determine an issue of fact “in the same manner that issues of fact are determined in other civil actions” and parties to a DJ have a right to a jury trial.  SC Code Ann § 15-53-90.  The purpose of the SCUDJA is to provide “relief from uncertainty,” and the statute is to be “liberally construed.” SC Code Ann § 15-53-130; Harrington v. Blackston, 311 S.C. 459, 463, 429 S.E.2d 826, 829 (Ct. App. 1993) (“Moreover, our Supreme Court has held that declaratory judgment actions must be liberally construed to settle legal rights and remove insecurity from legal relationships without awaiting a violation of the relationships.”).

Obviously, the DJ plaintiff would need to determine whether a DJ makes sense from a strategic standpoint. Considerations would include: the amount in controversy, the likelihood that the claimant will actually file suit; the strength of the potential defense to the claim; whether there is an advantage to beginning discovery now instead of waiting for the claimant to file suit; and of course venue considerations. This is a novel approach, to be certain, and it woudn’t be appropriate in most cases. But there might be that one case – that unusual set of facts and legal issues – that prompts consideration of this approach.