The late paleontologist Stepehen Jay Gould once said, “Facts do not ‘speak for themselves.’ They are read in the light of theory.” We here at Abnormal Use never really understood what Gould meant until we read this editorial by Daniel Leddy at silive.com. The piece, entitled, “Advance legal columnist: Look at all the facts behind outlandish jury awards,” suggests that there is normally a rational explanation found in either the law or the facts when a lawsuit produces a seemingly absurd result. While not all results are warranted, we agree that people should gather all the necessary facts before forming any opinions.That said , Leddy’s opinions on the legitimacy of jury verdicts is not what caught our eye. Rather, it is his one and only case sample – the famed Stella Liebeck McDonald’s Hot Coffee Case.

To demonstrate that not all jury awards are as bad as they seem, Leddy proposed to reveal the “actual facts” of the case. For the most part, the facts Leddy outlines are consistent with those found in our comprehensive FAQ file. While we have both attempted to provide an objective account of the infamous hot coffee case, we ultimately reach different conclusions about the case. So, how can this be?

Stephen Jay Gould was a wise man.

Facts are facts. But, their meaning is all in how you read (or present) them. For example, Leddy indicates that McDonalds served coffee at temperatures close to 190 degrees and that, according to the plaintiff’s expert, liquids at 180 degrees could inflict burns in just a few seconds. All true. However, he omits evidence that Liebeck would have suffered the same burns had the coffee been served at 130 degrees – well below the optimal temperature range (155-160) recommended by the plaintiff’s expert. More actual facts, but these paint a much different picture.

The difference is in theory and what one wants to prove. The facts can’t be changed. They are what they are. Nonetheless, both sides have a job to do. Whether it is the lawyers at trial or legal bloggers some 20 years later, the facts have to be presented in a manner that supports your theory.

Again, we agree with Leddy’s premise that people should learn the facts before forming any rash opinions. However, it is not always that easy. As is the situation with the Liebeck case, the notion that one is going to present you with the “actual facts” so that you can see the truth is misleading. More often than not, those facts are being filtered through a theory and may not be telling the complete story.

We don’t mean to discourage anyone from gathering information. Rather, our purpose is quite the opposite. Just pay attention to your source – whether it is Abnormal Use, Leddy, or anyone else – and form your own theory.

P.S. In light of this fact/theory distinction, we must continue to refer readers interested in the hot coffee case to our FAQ file. The FAQ is a comprehensive, source-based account of any and all information readily available to the public.

For those of you thinking about attending a town meeting in Riverhead, New York anytime in the near future, you may want to think twice about voicing your displeasure with any of the town’s policies.  As reported by the Huffington Post, by a 4-1 vote, Riverhead has banned booing at town board meetings.  But, don’t fret.  Applause is still permitted.  The Board only wants to outlaw behavior it considers “disruptive.”

We do not have access to the legislative history behind the new rules.  But even Justice Scalia should have no problem recognizing the legislative intent without it.  According to the new rules, people are permitted to speak during a public comment period, but they may not “engage in any demonstration, booing or otherwise disrupt the formality of a town board meeting.”  Disruptions are bad.  We understand that.  But if the Board was really trying to assure the healthy flow of board meetings, would it really permit applause?  Anybody whose ever watched a Presidential State of the Union address knows how disruptive – and annoying – applause can be in a formal setting.

Call us crazy, but it appears the Board is more interested in muffling the sound of dissention than honoring the formality of the proceedings.  As originally drafted, the rules recognized that applause can be just as disruptive as booing.  However, as the Riverdale Patch reported, the Board may have only been concerned about limiting some free speech:

The board voted to approve new legislation that prohibits any demonstration that lawmakers would consider disruptive to meetings, specifically booing, but agreed clapping would still be permitted.

The first draft of the legislation banned both booing and clapping.

But, after Dominque Mendez, president of the Riverhead Neighborhood Preservation Coalition, protested that the proposed law “goes far to restrict what’s free expression and free speech,” the board agreed to ban only booing, not clapping.

Hand clapping, Mendez said, has been heard at town board meetings during instances including the preservation of the North Fork Preserve. “People clapped and no one minded,” she said.

Of course, no one minds hearing the sounds of affirmation.  Disagreements, however, should be kept to oneself.  After all, free speech only applies to the kind we like, right?

We here at Abnormal Use do not consider ourselves among the handful of constitutional lawyers out there.  As such, we have no intentions on debating the First Amendment.  Nonetheless, we do know that booing is of the most universal expressions.  Everyone recognizes booing as the collective sound of disagreement.  Honestly, what is more disruptive – listening to one collective boo or having to endure through person after person take the floor to individually voice his or her displeasure?  Let’s just get in one good boo and go on about our business.

A couple of years ago, we here at Abnormal Use interviewed Adam Avery, President and Brewmaster of the Avery Brewing Company, as part of our “Abnormal Interviews” series. When asked how beer can be a catalyst to solving problems, Avery replied:

I think Homer Simpson said it best: “Beer, the cause of all the world’s problems and the solution.” I mean, beer is that thing that almost everybody loves. Most people that say they don’t like beer, they think of beer as Bud, Miller, Coors. They think of something that’s fairly flavorless and just carbonated. So, once we get everybody on board with how much flavor can come out of a craft beer, especially something like Collaboration Not Litigation. Everybody drinks a beer together and it just seems like an easy way to – it definitely helps to solve problems.

At the time, we thought Avery’s comments about the mass-produced American beers were common knowledge. Little did we know, he foresaw a future lawsuit. Last week, consumers filed lawsuits in federal courts in Philadelphia, San Francisco, and New Jersey against Anheuser-Busch InBev, the world’s largest brewer, for allegedly overstating the alcohol content in Budweiser. The suits allege that the company routinely adds extra water to produce beer with significantly less alcohol content than that displayed on the label. The complaints also allege that the mislabeling extends to Bud Ice, Bud Light Platinum, Michelob, King Cobra, Busch Ice, Black Crown, Bud Light Lime, Hurricane High Gravity Lager, Natural Ice and Michelob Ultra. According to Josh Boxer, the attorney for the plaintiffs in the California action, the allegations are based on information received from former employees of Anheuser-Busch.

The consumers seek damages in excess of $5 million.

This suit is still in its infant stages, so little information is available. Even if the allegations are true, we have to question the purported damages claims. Consuming one beer – whether it contains the stated 5% ABV or the watered down 3-4% ABV – will have little effect on intoxication. Anheuser-Busch products aren’t necessarily the beers many would just drink one or two of for pleasure. It is conceivable that people drinking watered-down beer would require an additional beer or two in order to reach a certain state of impairment. We guess the plaintiffs could have been damaged in having to pay for those extra beers over the years. But $5 million is a lot of “one mores.” (Plus, there must be some public policy argument to thwart a “I couldn’t get as drunk as quickly as I wanted” claim.).

What remains to be seen is whether the plaintiffs will claim that the watered-down product somehow has less taste than a beer with the stated ABV. Considering the beers allegedly effected, such a claim would be downright silly. Many seasoned beer drinkers, like Adam Avery, would suggest that the beer was flavorless regardless of its alcohol content. Even if the beer is not completely devoid of flavor, we doubt the flavor difference would be tangible to even the most sophisticated palates.

If the plaintiffs’ allegations are true, then the situation obviously needs to be corrected. But if the plaintiffs’ damage is drinking a flavorless watered-down beer, then they may have assumed the risk with their beverage choice.

For as long as there have been products to sell, manufacturers used puffery in their advertising.  Whether it is the claim that a vacuum cleaner will make you happier in the 1940’s or the purported health benefits of cigarettes in the 1920’s, companies often take  “artistic liberties.”  Most companies are careful enough not to guarantee their results; they include a healthy “results not typical” disclosure. With that in mind, let’s take a look at the Rawlings Power Balance bracelets, pictured below.

According to Rawlings’ website, the bracelets have a “power balance hologram embedded with frequencies that react positively with your body’s natural energy fields” to provide strength and flexibility.  It may sound crazy, but the concept behind balancing energy fields is nothing new. Back in August, Stacy Orlick commenced a proposed class action against Rawlings in the U.S. District Court for the Central District of California for allegedly falsely advertising the bracelets on Walmart.com.  Orlick claims she purchased a $35 bracelet based on a Walmart.com ad and never received the advertised benefits.  Rawlings moved to dismiss the complaint, alleging the plaintiff failed to demonstrate that it was responsible for the Internet advertisement.  However, because the Walmart.com ad “substantially mirror[ed]” the ad Rawlings uses on its own website, U.S. District Court Judge George King denied the motion.  The case is captioned Stacy Orlick v. Rawlings Sporting Goods Co., No. 12-cv-06787 (C.D. Cal. 2012).

Now that the suit has survived the dismissal, it will be interesting to see how things transpire.  Rawlings’ best defense is obviously the truth.  The question: How is it measured in this context?  We cannot observe energy fields with the naked eye.  We imagine some objective strength and flexibility testing could be conducted.  But, if testing reveals that any positive effects of the bracelet are the result of a placebo effect, then can Rawlings be found liable for false advertising?  If users derive some placebo-led benefit from the use of the bracelet, then there does not appear to be any harm.

We here at Abnormal Use confess to using power balance bracelets.  In so doing, we have had more energy and, overall, just felt better.  We have no idea whether these results are the product of the “power balance hologram” or of us just really, really liking bracelets.

As you might suspect, we here at Abnormal Use don’t get out much. However, we hear that online dating is kind of a big deal. Every time we turn on the television, it seems we come across another one of these social experiments. Match.com. Eharmony.com. Plentyoffish.com. There are even sites geared towards certain groups like farmers or cat lovers. If these sites help people meet that special someone, then more power to them. But what happens when that “perfect match” turns out to be an online predator?

Many states now have or have proposed laws requiring sites to notify users whether they conduct background checks. Sounds good, right? Tim Carney of the Washington Examiner doesn’t seem to think so. According to Carney, a driving force behind New Jersey’s law was the Safer Online Dating Alliance (SODA), an arm of dating site True.com. Because True.com already conducted background checks, he alleges that the proposed regulations were a means of scaring users away from competitors.

Carney may be right in questioning the motives behind the regulations, but he has obviously overlooked the legal ramifications of warning labels. Advertising that your dating site conducts background checks is a means of increasing user confidences. Conversely, disclosing that your site does not conduct checks acts to warn users of the potential hazards associated with meeting up with a total stranger. While we are not aware of any litigation against dating sites by users who were set up with dangerous individuals, such suits should be expected. A good warning label may be just the thing dating sites need to protect themselves.

Are these “warning labels” needed? Probably not. There is no question that users should assume the risk of their online mate not working out in the real world. But if we have to warn consumers that a jar of peanuts may contain peanuts, then we may want to let them understand they may be dating a predator. Sigh.

(Hat tip: Walter Olsen, Overlawyered)

We here at Abnormal Use encourage our readers to comment on our posts. We can be a bit out-spoken at times (even blunt), so reader comments are a means of encouraging healthy conversation about those issues. Unfortunately, we sometimes allow that conversation to remain one-sided. We love reading your comments. Honestly, we do. When living the double life of the lawyer blogger, it is just hard to find the time to respond in the way you deserve. But one day, we promise to reply to each and every remark.

One day, we promise to reply to the 30 comments to our post about the potential biases of Hot Coffee documentary filmmaker Susan Saladoff. Perhaps, we will finally find the time to respond to one reader who asked:

By the way, exactly how much are you being paid for that “obligation”? I’m very interested in that “pesky little detail” of yours.

Sigh. Soon, we will let her know that we do not represent McDonalds, but we would love to do so, if she could get us connected.

Maybe, when we have a spare moment, we will respond to this comment, posted a year and a half after our story:

WHO WAS TELLING US THAT STORY [Stella Liebeck lawsuit]????? Why is it that Nick Farr, and the others who have posted demeaning and insulting comments about Susan Saladoff, did not ask themselves that question? Why is it that these folks did not ask themselves what the motivation was for the people who decided to circulate that total distortation of Stella Leibeck’s case?

When we have time, we will let her know that our goal has always been to put forward as much factual information as is available on the McDonalds case regardless of the “side” it discredits. It would also probably help if we pointed her to our expansive – and objective! – FAQ on the issue.

One day, we swear to finally chime in on the 33 comments to our Hot Coffee review. We need to respond to those comments that cited our jobs as defense lawyers and claimed that we were advocating tort reform via film review. We promise to give each of those the attention it deserves. We especially need to respond to this reader, who writes:

Remember the victim and take your beating like an adult.

We will finally let him know that the writer was a mere 14 years old and was more concerned with the perils of puberty than passing the New Mexico bar exam when the Liebeck verdict was rendered. As such, he takes no credit for the “beating” that occurred in the courtroom in 1994. Unless, the reader was referring to the fraternal order of defense lawyers in which we all share in each others losses. Once we have a moment, we will let him know.

One day.

One day, we will respond. We really will. We appreciate your comments and encourage the continued dialogue. One day, we engage in these debates. Just not today. Back to work.

Clark County (WA) Deputy Sheriff Edward Bylsma had an “uneasy” feeling after ordering a Whopper from a Burger King drive-thru. After lifting the bun from the burger, his suspicions were confirmed. As if living an urban legend, he allegedly discovered a large glob of spit on his burger. Fortunately, Bylsma had yet to take a bite out of the burger. Nonetheless, he claims that he now suffers ongoing emotional distress, including vomiting, nausea, food aversion and sleeplessness. After his subsequent lawsuit was appealed to the Ninth Circuit,  the Washington Supreme Court was faced with the certified question of whether emotional distress absent physical injury is recoverable under the state’s product liability statutes. See Bylsma v. Burger King Corp., No. 86912-0 (Wa. Jan 31, 2013)

The Model Uniform Product Liability Act (UPLA) includes mental anguish within its definition of the “harm” necessary to maintain a product liability cause of action so long as it is accompanied by some physical manifestation. Washington’s Product Liability Act (WPLA) chose not to adopt the definition but, rather, to follow trends in developing case law. Without any guidance from the WPLA, the Court turned to precedent involving emotional distress from other torts. As it turns out, Washington has permitted recovery in the absence of physical injury in situations involving emotionally laden personal interests such as the improper burial of an infant child. Like these cases, the Court concluded that food consumption is a personal matter and its contamination is associated with disgust and emotional turmoil. As such, emotional distress arising out of food contamination is recoverable under Washington law.

Now that the question is answered, it will be interesting to see how Bylsma’s suit develops. If his case is remanded back to the trial court, he still must prove his emotional distress. Despite the recent “victory,” proving injury may nonetheless be difficult given the fact he did not actually consume the contaminated product. Admittedly, we too would be disgusted to discover that someone had spit on our burger, but it’s not like the resulting fear would be anything new. Isn’t the risk of food loogies an assumed risk of eating fast food? In addition, Bylsma’s newfound aversion to fast food may not be a “damage” at all.

The point of the physical injury requirement is to temper fraudulent emotional distress claims. Emotional distress is completely subjective and very difficult to evaluate. While the Washington Supreme Court’s decision appears to be limited to the food context, it will be interesting to see how many purchasers, but not users, of defective products try to test its bounds.

Of course, what’s the harm in trying?

Lance Armstrong and his confession have been all the rage as of late. We here at Abnormal Use are apathetic, as we are neither fans of cycling nor Sheryl Crow’s ex-beaus. Others are outraged by his admission to doping – some even to the point of filing suit.

According to a report from USA Today, two men filed suit against the seven-time Tour de France winner in a California federal court alleging that Armstrong’s autobiography, It’s Not About the Bike, is a fraud. The men claim the book contains falsehoods about how Armstrong was able to perform at such a high level on cycling’s biggest stage. In support of its allegations, the suit cites Armstrong’s recent confession to Oprah Winfrey that he used banned drugs or blood transfusions during each of his Tour de France victories. The men claim that they would not have bought the book had they known “the true facts concerning Armstrong’s misconduct.” The suit seeks class-action status on behalf of other readers.

Sigh.

As you might expect, we question the merits of this lawsuit. The men apparently seek only a refund of the book’s purchase price and, of course, their attorney’s fees. We must wonder if the men have sought refunds for every autobiography containing lies and inaccuracies. While we don’t have any sources, we imagine Armstong is not the first to lie in a self-penned work.  (James Frey, anyone?). Nothing good comes from mendacity, especially when the liar profits from the falsehood. Nonetheless, it is hardly worth taking it to a federal court over $29.95.

This, like many lawsuits, is not about the money. It is a reactionary suit to being duped. Feeling wronged by an idol is tough to take. It is natural to assume our heroes walk on water. Despite their other-worldly talents, however, like us, they too are human. Rather that own up to our creation of an unrealistic of our heroes, upon this discovery, we often take our anger out on them.

In this case, we recognize that Armstrong played a role in creating his supernatural cycling mythos. It’s okay to be mad at him about it for awhile. Let’s just leave our anger out of a federal courtroom. Another sports star for us to worship will come along soon enough. And we guess someone will sue that person, too.

Late last year, NBA Commissioner David Stern fined the San Antonio Spurs $250,000 for benching its star players for a November 29th game in Miami. As you might recall, Spurs coach Greg Popovich elected to rest star players Tim Duncan, Manu Ginobli, Tony Parker, and Danny Green against the Heat for the last game of 6-game road trip. We here at Abnormal Use refrained from voicing our opinions on the fine because it was not necessarily a legal issue at the time.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.

Ever wonder what happens to the companies involved in all of those recalls ordered by the Consumer Product Safety Commission (CPSC)? Many manufacturers sit back and conform to the CPSC’s demands to correct any perceived safety issues. Others publicly voice their displeasure. (We previously reported on the Buckyballs recall and the humorous company retort).

Count Nap Nanny infant recliner manufacturer, Baby Matters, LLC, as a member of the latter.

Back in 2010, the CPSC and Baby Matters issued a joint recall of the Nap Nanny following the death of an infant who had fallen from the product. Apparently, the baby harness on the first generation model attached only to the product’s fabric cover and did not adequately secure the children.  Infants using an improved second generation harness (pictured above) allegedly still ran the risk of partially falling and hanging over the side of the Nap Nanny. Following the voluntary recall, at least five additional deaths and 70 injuries were reported to the CPSC. According to reports, the CPSC then attempted to work with Baby Matters to correct the safety issues. When those discussions failed, in December, the CPSC filed an administrative complaint seeking to require Baby Matters to notify the public of the issues and offer refunds to consumers. Thereafter, the CPSC announced that major retailers (Amazon, Buy Buy Baby, Toys R Us, and Diapers.com) had agreed to voluntarily recall the Nap Nanny because Baby Matters had refused to do so. Here’s where this tale becomes even more interesting.

According to a report from The Consumerist, Baby Matters is now seeking a dismissal of the CPSC’s complaint. Interestingly, the company takes issue with language in the CPSC’s press release announcing the participation of the retailers. Apparently, an original version of the release stated that “it is illegal to attempt to sell or resell this or any other recalled product.” The Consumer Product Safety Act only makes it illegal to sell products following a voluntary recall by the manufacturer. Baby Matters claims the CPSC waited until 6:30 p.m. to correct the statement. By this time, the release “had achieved maximum impact.” The company now seeks a retraction and clarification that retailers are allowed to continue selling the Nap Nanny during the pending CPSC suit.

We here at Abnormal Use know little about the validity of the CPSC’s safety concerns in this case. In fact, even though we are parents of infant children, we were not even aware such a product existed (although we admit it looks comfortable). We do, however, understand the CPSC’s desire for action after continued reports of deaths and injuries, but obviously, the government, when pursuing any sort of action, should ensure that its literature is, at the very least, accurate.  We’ll be keeping our eyes on this one.