Apparently, there are various services out there which provide fake reviews for products in exchange for payment. Who knew? Amazon did, and it may be the first company to take a stand via a lawsuit to combat this practice:

According to GeekWire, the e-commerce giant has filed a lawsuit against a man known as Jay Gentile from California, who was identified as the operator of several websites that peddle product reviews, including bayreviews.net, buyreviewsnow.com, buyazonreviews.com and buyamazonreviews.com. The Seattle Times, however, notes that while the last two are included in the lawsuit, they are owned by different people, and that buyamazonreviews.com belongs to someone named Mark Collins.

The lawsuit alleges that the defendants were “offering fake verified reviews for a price and . . . telling potential customers that they can just ship empty boxes to his writers for the website to recognize the purchase.” According to sections on www.buyamazonreviews.com explaining the nature of the business:

Never has it been easier to get multiple 4 and 5 star reviews on your Amazon product page. We provide real reviews from aged accounts with real buying activity. Most products in the Amazon marketplace will never even be seen. The more positive reviews you have the better your chances are.

The website also explains that:

A purchase of your product is not required for us to post a review. If you would like a verified purchase review however we can buy your product first. If the cost is $2.00 or less we will cover the price. If it is more than this you will need to make arrangements with us to reimburse the cost. We are only accepting very limited amounts of verified purchase reviews, please contact us before ordering if you are interested in these.

The site also provides pricing information for various quantities of reviews:

Thus, it appears that buyamazonreviews.com is quite up front and public about the nature of its business.  Presumably, someone has at least looked into whether the practice is legal or in compliance with the website’s terms of service.  It will be interesting to see whether the business model is defensible in court.

We have several questions regarding the legal issues surrounding the case.  For example, does Amazon have standing to file suit essentially on behalf of its customers?Presumably, if the “enhanced” reviews drove more sales, Amazon actually experienced increased sales.  What if a product for which review are purchased is simply a great product, and the review from a normal customer would have been a four or five star rating anyway?  Along those same lines, if the customers who actually purchased the products because of the high reviews, and the customers ended up liking the product, are there damages?  What if the reviews at issue actually caused Amazon to have increased sales? As noted above, we suspect this may be an abuse of the terms of service, and Amazon is just policing things to ensure that its reviews are intellectually honest. We’ll see.

In a previous post, we discussed the lawsuit filed by Kaci Hickox to challenge the quarantine imposed upon her following her return from a stint in Africa during which she treated Ebola patients.  Another Ebola-related lawsuit has now been filed.  Nina Pham, the nurse who contracted Ebola in a Texas hospital, filed a complaint in the district dourt of Dallas County, Texas against Texas Health Resources, Inc. (THR) the hospital system for which she worked at the time she contracted Ebola.

The complaint, which can be viewed here, alleges that the hospital had no plan to deal with Ebola and that the protocols in place were not adequate to protect employees against the virus despite the hospital’s advance knowledge that it should be prepared to deal with Ebola.  The thirty-six page, artfully written complaint is actually an interesting read, and it contains a number of shocking allegations.  It even has pictures!  abcNEWS outlined some of the more surprising allegations in the lawsuit here.  Some of the more interesting claims deal with the hospital allegedly violating HIPAA by releasing video footage of Nina Pham and disclosing details of her treatment without her consent.

Pham is represented by Charla Aldous and Brent Walker of the Aldous Law Firm in Dallas, Texas.  According to the docket, THR has not yet filed an answer, nor have any attorneys entered an appearance on its behalf.  According to this American Lawyer article, the hospital should have no shortage of Ebola litigation teams to select.

We recently blogged about vaccine law in light of the recent measles outbreak in the United States.  We now have a recent example of measles-related litigation which does not involve allegations of a defective vaccine. A German biologist and measles virus skeptic, Stefan Lanka, reportedly offered 100,000 euros, or $106,300 USD, to anyone who could prove the existence of the measles virus.  Lanka apparently believes that the illness is psychosomatic – that measles is actually a set of symptoms which manifests itself as part of some peoples’ unusual mental reaction to traumatic separation.  Well, unfortunately for Lanka, German doctor David Barden was able to easily gather various medical studies which show that measles is indeed a virus.  When Barden presented the proof to Lanka, Lanka dismissed the findings and refused to pay, so litigation ensued. A court in the town of Ravensburg ruled that the proof provided by Barden was sufficient, and that Lanka needed to pay up.  That is, the court ordered Lanka to pay Barden the entire 100,000 euros.  Rough day for Lanka – disproven, disgraced, and dispossessed of 100,000 euros.  And to add a cruel twist, the story has gone viral, or perhaps the spread of the story is merely psychosomatic.

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution.  The $95 book is meant to teach Plaintiff’s attorneys “how to make tort reform’s impact on juries insignificant by using the jurors’ most primitive instincts of safety and self-preservation.” For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival.  Keenan and Ball explain that jurors will disregard the facts, law, and so forth to do whatever it takes to survive and that tort reform has taken control of those survival-oriented decision making parts of the brain.

Accordingly, the Reptile strategy is used to retake control of the same “reptile” part of the brain and use that control to manipulate jurors into returning large verdicts.  For the reptile strategy to work, the jurors must be convinced that public safety, and their personal survival, will be negatively impacted unless they return a verdict in favor of the plaintiff.  One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, not the harm which actually happened.  The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous.  In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for $6,211,466,889 in verdicts and settlements.  In reading the book, we wondered whether the reptile strategy can be used by the defense as well, and two possible uses for the reptile by the defense come to mind.

We first wonder whether the reptile tactic can be employed in support of affirmative defenses such as contributory negligence arguments.  The reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public.  Why can’t the defense establish that, in the process of contributing to or causing his own injuries, the plaintiff endangered the public?  Why can’t product warnings provided to the plaintiff be safety rules which protect not only the plaintiff, but the public who may be in close proximity while the product is being used?  Why doesn’t the user of the product who disregards product warnings thereby endanger the public?  There are numerous articles on combating reptile tactics by reframing questions, objecting, filing motions, et cetera.  Obviously, if a defendant takes the position that the Court should exclude the reptile from the courtroom, it would be unwise for the defense to then employ the tactic.  We simply suggest here that, if the reptile does end up in the courtroom, perhaps the defendant can fight reptile with reptile.

We also wonder whether the reptile tactic can be employed by the defense to present to the jury all of the safety rules that the defendant did follow.  That is, can the reptile brain be calmed by showing that the defendant was compliant with x number of safety rules at the time of the incident? Depending on the facts of the case, can the defendant show that it complied with the myriad of OSHA regulations, ANSI standards, FMVSS regulations, local ordinances, municipal laws, or any rules or regulations which are potentially applicable?  And that compliance with these rules not only provided protections to the plaintiff, but to the public at large?  Obviously, this is already done to an extent, but we simply ask whether the reptile tactic can be employed in this context by the defense.

Reportedly, a Portland, Oregon woman has filed suit, seeking $100,000.00 in connection with an attempted Valentine’s Day dinner gone awry.  According to the news reports:

. . . Kathleen Hampton, a small business owner, arrived at her 7 p.m. reservation — for two — by herself on Feb. 14 at Enzo’s Caffe Italiano on Northeast Alberta and was made to wait while parties who arrived after her were seated. Hampton’s husband was supposed to join her for dinner, but was still full from lunch and decided not to go.

Once seated, Hampton claims she was ignored ‘and was not getting any services.’ She then told a waitress she was ready to order, but the waitress replied that she would not be taking her order and that Hampton had to leave the restaurant and give up the table.

Hampton also tried to ‘give them away out’ (sic) and order take-out, but the restaurant told her they do not offer the service.

‘That was the final straw,’ Hampton said in the lawsuit. ‘I’ve never heard of a food place not having to-go.’

The restaurant denied any knowledge of the lawsuit, but a representative did remember the night a  bit differently:

‘She made [a] reservation for two and when she got there, said ‘Oh, just by myself,”Lanzadoro told Oregon Live. ‘We offered for her to sit at the bar with other single diners since Valentine’s Day is very busy and all we know is she got up [from the table] and left without paying after she drank two glasses of wine.’

Ms. Hampton’s pro se filing allegedly seeks $100,000.00 as a remedy for the embarrassment and humiliation that she experienced while attempting to dine alone at a table for two on that fateful Valentine’s Day.

We have some questions.  Could it be the old adage about a pro se litigant having a fool for a client is inapplicable here?  Could it be that Ms. Hampton is a fool like the fox – that she wants the jury to see her sitting alone at counsel table so that they will understand the loneliness she felt that evening at the restaurant? Or, will the unidentified husband show up at trial to fill the seat that he could not fill on the night that his wife was wrongfully denied a table for two?  Will the restaurant have an empty chair defense based on the husband causing the party for two to become a party of one?  Or more importantly, if the husband does not show up for trial, will the court allow Ms. Hampton to have multiple chairs at counsel table (just in case he shows up), or will she ironically only be permitted to have one chair?  Will the restaurant counterclaim for the price of the two glasses of wine that Ms. Hampton failed to pay for?

On a serious note, we have a feeling this case has reservations for 12(b)(6) (or as our friends in Oregon say, 21(A)(8)).

P.S. – Is “still full from lunch” a valid excuse to get out of Valentine’s Day dinner? Asking for a friend.

It’s that time of year again – The Oscars.  The Academy of Motion Picture Arts and Sciences was tasked with selecting the best of the best in the motion picture industry.  Those watching the Oscars saw the best picture of the year, the best director, et cetera.  As we watched the awards ceremony play out, we here at Abnormal Use became curious about whether we could find any good Oscar references in reported caselaw.   What we found was a Seventh Circuit opinion in which defendant convicted of conspiracy to distribute narcotics, among other things, took issue with a prosecutor’s reference to scenes from The Godfather in closing argument:

At the close of the government’s case (which also happened to be the end of all the evidence since Kincannon declined to present anything), Kincannon filed a motion for a judgment of acquittal, which the district court denied. The government’s closing argument came next, during which the prosecutor made an analogy to an Academy-Award-winning movie: The Godfather. Recounting a pivotal scene where the director simultaneously presented assassinations orchestrated by the protagonist, Michael Corleone, the prosecutor explained that he, like the movie’s director, would attempt to seamlessly tell the ‘story of what happened’ in this case. The prosecutor also recounted Thorburg’s drug-fueled demise, noting that ‘it illustrates the power of this stuff and why we’re on a serious purpose today in considering the charges against Mr. Kincannon.’ Eventually, the jury found Kincannon guilty on both the distribution and the conspiracy counts and rendered a special verdict, finding that the conspiracy involved 500 grams or more of methamphetamine.

United States v. Kincannon, 567 F.3d 893, 896 (7th Cir. 2009). The Court saw nothing wrong with the reference, finding that if it’s good enough for the Oscars, it’s good enough for it:

It would be one thing if the government compared Kincannon to Michael Corleone, an organized crime kingpin responsible for murders and a whole host of other criminal activity. See Alvarez v. McGinnis, 4 F.3d 531, 534 (7th Cir.1993). Such an analogy would be utterly unmoored from the record, which is probably why the government made no such connection. It was not Corleone’s criminality, but Francis Ford Coppola’s direction that was at the heart of the prosecutor’s closing remarks. The prosecutor alluded to the pivotal point in the movie where Corleone attends his godchild’s christening. Coppola cuts to various scenes of assassinations orchestrated by Corleone as a priest dubbed him the child’s godfather. The poetic implication is that the murders, like the priest’s liturgy, made Michael the godfather of the Corleone crime family. As the prosecutor said, “[n]ow that is how you present events that occur simultaneously in a movie so the viewer can understand it very easily.” We agree, as did the Academy of Motion Picture Arts and Sciences, who nominated Coppola for an Oscar for best director. The prosecutor explained to the jury that he would try to do orally what Coppola did in his film-that is, tie together the events that occurred during the two controlled buys into one seamless story. To do so as eloquently as Coppola is a tall task, but there is certainly nothing improper about the attempt.

Id. (footnotes omitted). Could it be that the Oscars not only influenced the trial, but that it also dictated the outcome of the appeal?  Probably not.

We hope that we’ve enriched your awards season.  Carry on with the heated discussions about the best dressed, snubs, and the like.  The only thing this author will add is that no snub will ever be as egregious as the snub of Leatherheads, the breathtaking piece in which “an enterprising pro football player convinces America’s too-good-to-be-true college football hero to play for his team and keep the league from going under.”  Perhaps this author is biased because he put his heart and soul into that film (as an extra), but the Oscars obviously missed something that the ESPY awards and Australian Film Institute saw. Until next year!

Abnormal Use‘s own contributor Kyle White was recently interviewed by James E. McCollum, Jr., Esquire of McCollum & Associates for his Sirius/XM radio show The Legal Pad.  The Legal Pad is “[a]n informative show that examines the legal issues of today” in which “Howard University School of Law Alumni James E. McCollum, Jr., Esquire answers questions on a variety of legal topics including civil litigation, constitutional law, and administrative law.”  For SiriusXM and SiriusXM Internet Radio subscribers, the show airs on channel 141 Wednesdays at 6:30 p.m., with encores on Saturdays at 6pm and Mondays at 9 a.m. This, of course, means you can listen to Kyle’s interview tonight!

During the 27 minute show, Kyle had the opportunity to discuss with Mr. McCollum the Abnormal Use blog, general issues encountered in product liability litigation, as well as various other areas of interest.  The show’s first run is Wednesday, February 25th at 6:30 p.m. with an encore Friday, February 27th at 5 p.m., Saturday, February 28th at 6 p.m. and Monday, March 2nd at 9 a.m.  Kyle enjoyed the opportunity to speak with Mr. McCollum on his radio show, and we encourage everyone to listen to the show if you don’t already!

In the past month, there have reportedly been at least 92 measles cases, which is odd considering the disease was “eliminated” in the United States in 2000.  Because most of us do not have direct experience with measles, a refresher is in order.

According to the CDC:

Measles is a highly contagious virus that lives in the nose and throat mucus of an infected person. It can spread to others through coughing and sneezing. Also, measles virus can live for up to two hours on a surface or in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, then touch their eyes, noses, or mouths, they can become infected. Measles is so contagious that if one person has it, 90% of the people close to that person who are not immune will also become infected.

To prevent this nasty disease, the CDC recommends a measles vaccine, which according to the CDC, is 97 percent effective at preventing the disease.  In fact, every state requires a measles vaccination unless an individual meets certain state-specific exemptions.  For example, in California, an individual may opt out of the vaccination requirement based on personal beliefs or medical reasons.  However, in Mississippi and West Virginia, an individual may only opt out for medical reasons, such as a weakened immune system.  Due in part to vaccination laws, about 94.7 percent of kindergartners were vaccinated against measles last year, again according to the CDC.

Like any drug, there are occasionally adverse side effects of vaccines.  To compensate individuals injured by vaccines, Congress set up a no-fault compensation system, the National Vaccine Injury Compensation Program (NVICP), via the National Childhood Vaccine Injury Act of 1986 (NCVIA).  The NVICP is funded by a 75 cent per vaccination tax.  NVICP claims are filed with the U.S. Court of Claims, and reportedly, the Court of Claims had awarded nearly $2.5 billion to vaccine victims for vaccine injuries.  However, two out of three NVICP applicants are denied compensation.  Until 2011, it was unclear what, if any, remedy individuals had apart from the NVICP.

In 2011, the Supreme Court clarified the issue and effectively ended vaccine litigation. Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).  After the Bruesewitz family’s NVICP application was denied, they pursued relief against a vaccine manufacturer in the U.S. District Court for the Eastern District of Pennsylvania.  The trial court granted summary judgment based on federal preemption, and the Third Circuit affirmed.  In a 6-2 decision (Justice Sotomayor recused herself due to her pro-vaccine work with the Obama administration), the Supreme Court affirmed, holding that private causes of action against vaccine manufacturers for vaccine injuries were preempted by the NVCIA.  That is, the exclusive remedy for someone injured by a vaccine is the NVICP.  So, the debate over whether a private right of action against a vaccine manufacturer for vaccine injury was settled in 2011.

The recent debate sparked by the measles outbreak concerns parents’ decisions to not vaccinate their children based on an applicable exemption.  On one side of the debate, you have parents who, for various reasons (fear of side effects, religion, et cetera), choose not to have their children vaccinated.  On the other side of the debate, you have the argument that the non-vaccination decision of these parents endangers those with weakened immune systems, those who for whatever reason the vaccine did not take (approximately 3 percent of people can still get measles even after receiving the vaccination).  This author declines the opportunity to side with either group in this post.  However, it will be interesting to see what litigation evolves out of the debate.

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in such cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from Foster Wheeler boilers caused the decedent’s mesothelioma.

Judge Norton’s thorough, well-written opinion began by concluding that South Carolina law applied to the diversity action and that South Carolina had unequivocally adopted the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) “frequency, regularity and proximity test” for causation in asbestos cases. The Plaintiff in Sparkman attempted to distinguish Lohrmann, arguing that the standard only applied to asbestosis cases. The Plaintiff urged the Court to follow the Seventh Circuit’s lead and apply a lower “minor exposure” standard in mesothelioma cases. Judge Norton rejected this argument, finding that the South Carolina Supreme Court opinion which actually adopted the Lohrmann standard, Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007), broadly dealt with “mesothelioma and other asbestos-related illnesses.” In other words, the law of South Carolina requires a plaintiff to satisfy the frequency, regularity, and proximity factors in order to establish causation in an asbestos case, regardless of the disease at issue.

The Court then considered whether the evidence satisfied the Lohrmann factors such that there was a genuine issue of material fact as to the allegations that a Foster Wheeler boiler caused the Plaintiff’s mesothelioma. The Court found that there were fatal holes in the proof. For example, while the Plaintiff was perhaps able to show that a Foster Wheeler boiler was in the vicinity of the Plaintiff at relevant times, the Plaintiff was unable to show that the Foster Wheeler boiler was responsible for exposing the Plaintiff to friable asbestos.

In the end, the Court concluded that the Plaintiff “fail[ed] to raise a genuine dispute as to whether [the decedent] was exposed to asbestos from a specific product manufactured by Foster Wheeler, much less on a frequent and regular basis.” Judge Norton’s opinion has several transcendent meanings. First, it means that Plaintiffs must prove that a Defendant was responsible for causing the Plaintiff’s injury, even in an asbestos case. Second, it means co-worker testimony that he or she may remember a defendant’s product being near the Plaintiff isn’t enough to survive summary judgment. And indirectly, this opinion undermines the popular Plaintiff’s “any exposure” causation theory.

Most people have probably not seen this fascinating TED talk on Eulerian Video Magnfication, since it currently boasts only approximately 600,000 views. However, everyone should watch it, or at least read one of the articles about it written by the New York Times Blog or Huffington Post.  In short, this technology, developed by researchers at MIT’s Computer Science and Artificial Intelligence Laboratory, magnifies subtle movements and color changes in humans and objects.

For example, as explained by Dr. William Freeman in the above-referenced TED talk, the technology can detect the changes in someone’s skin color as a result of blood being pumped under the skin, which allows someone to actually see someone else’s pulse.

Dr. Freeman cites baby monitors as a potential application for the technology.  Videos played during his talk show that the technology magnifies normally visually undetectable breathing motions in infants so that parents can actually see the infant breathing. At first glance, this technology might not have tremendous impact on the legal field considering the fact that we rarely have the opportunity to view events at issue in real time. However, the technology does not require watching an event through a special lens.  Dr. Freeman explains in his speech that one can upload a video and the technology can amplify subtle movements, color changes, et cetera. in the underlying video itself.

So, is there a new market for lie detecting experts armed with Eulerian Video Magnification to analyze pulse changes and other “tells” during recorded video testimony?  Can the technology be used to magnify subtle changes in a structure prior to its collapse to identify exact point that the structure began to give way?

In this author’s opinion, lawyers have the opportunity to do incredible things with this technology.