Twenty one years ago, Stella Liebeck spilled what became the world’s most famous cup of coffee. Two years ago, we here at Abnormal Use started writing about her famed litigation against McDonald’s.  Our FAQ file on the litigation and our commentary on the subsequent Hot Coffee documentary created quite a buzz in the blogosphere. (In fact, those posts are still drawing comments two years later). What about a cup of coffee spilled in New Mexico more than two decades ago is so important that we are still talking about it today?

For starters, history keeps repeating itself.  So we have to keep writing about it, right?

According to a report from The Louisiana Record, a Louisiana woman is suing Burger King over burns she allegedly sustained by a cup of the fast food chain’s coffee. The woman alleges that a Burger King employee handed her the coffee through a drive-thru window. When the cup’s lid dislodged, the coffee spilled and allegedly caused serious burns to her arm, chest, and stomach. The woman claims that Burger King failed to properly secure the lid and served coffee at an extreme scalding temperature. Feel like you have heard this story before?

This case remains in its infant stages, so not much is known about the validity of the woman’s complaints. Nonetheless, we all know how this one likely will play out. Again, hot coffee cases are nothing new. In fact, many hot coffee claims predated Stella Liebeck – the McDonald’s case was just the first of a very few cases to see the inside of a courtroom. Based on this precedent, we doubt Burger King and the Louisiana woman will be heard by a jury of their peers, although we suppose that may depend on when the lid dislodged and if the employee was handing it to her as it did.

We’ll see. What is the meaning of all of these hot coffee claims some 20 years after Stella Liebeck? The plaintiff’s bar would have you believe that the Liebeck verdict was a mandate, now ignored, for restaurants to cease serving an “unreasonably dangerous” product. Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief. Despite the threat of litigation, people will continue to demand that their coffee be served hot. The debate will rage on.

Before accusing us of spreading dirty corporate information, let us reiterate that we recognize both sides of the issue. You will not hear us questioning the seriousness of Liebeck’s injuries or the temperature of her coffee. Liebeck and many of the plaintiffs that followed sustained significant injuries caused by hot coffee. We do not question these facts. We simply believe that this is a liability issue. Coffee is meant to be served hot, and plaintiffs want it that way – until it is spilled. The latest coffee case will not be the last. As long as people keep drinking hot coffee, restaurants will continue to serve it that way. And, if people keep drinking liquids, spills will ensue. And lawsuits will happen, apparently.

Every tort has elements established by either common or statutory law which must be proven in order for the plaintiff to prevail. For example, negligent conduct without resulting damages does not constitute an actionable negligence claim in the eyes of the law. Product liability claims are no different. Plaintiffs must show that they were injured by a product but also that the injuries were caused by a product in an unreasonably dangerous, defective condition. If one element is not proven, then the plaintiff cannot prevail. In cases involving complex, scientific issues, expert testimony is often necessary to prove the design defect. Recently, the South Carolina Supreme Court addressed the difficult burden plaintiffs face in proving these necessary legal elements.

In Graves v. CAS Medical Systems, Inc., Op. No. 27168 (S.C. Dec. 12, 2012), the plaintiffs filed suit against CAS Medical Systems following the death of their 6-month old daughter. The girl was one of three triplet daughters ordered to be connected to an in-home monitor manufactured by CAS to track breathing and heart patterns. By design, the monitor would sound a loud alarm if the girl stopped breathing or her heart rate slowed. Despite being monitored by the machine, the girl died one night of Sudden Infant Death Syndrome (SIDS). The plaintiffs allege that the monitor’s alarm never sounded.

Subsequently, the plaintiffs sued CAS, alleging that the monitor’s software design caused the monitor to fail. As an over-simplified summary of their theory, they alleged that the software was “jumbled,” causing the alarm signal to occassionally get lost on the way to its destination. There was no dispute that the harware functioned properly. To support their claim, the plaintiffs retained three software experts to testify that a defect caused an alarm failure. None of the experts did much actual testing of the hardware, relying instead on so-called differential diagnosis theory. Because the plaintiffs were not woken by the alarm, it must not have sounded, at least according to the experts. Because the hardware was not defective, then the software was to blame. Sounds like good logic.

At trial, CAS moved to have the experts’ testimony excluded on the grounds that it did not meet the reliability factors for scientific testimony. In turn, CAS moved for summary judgment because without the expert testimony, the plaintiffs could not prove a design defect. The Court agreed that the experts’ testimony was not reliable and granted CAS’ motion for summary judgment.

On appeal, the Supreme Court agreed with the trial court in finding that the experts’ testimony was unreliable. The Court indicated that when relying on differential diagnosis, the expert must provide a reasonable, objective explanation for the rejection of alternative causes. Apparently, the “because they said so” explanation was insufficient. As the Court noted, there was substantial evidence that complaint error was a real possibility. The monitor’s internal record keeping system noted that the alarm sounded. The girl’s pediatrician opined that the plaintiffs slept through the alarm due to the extreme exhaustion of raising triplet infants. Moreover, the monitor successfully recorded the girl’s declining heart rate and breathing cessation. None of this evidence appears to have been accounted for by the experts.

Without the expert testimony, the Court held that the plaintiffs’ could not prove the injury was caused by a defective condition – an essential element of a product liability claim. The plaintiffs had to offer some evidence beyond a potential failure to show that it was unreasonably dangerous. Because the allegations involved complex software issues, expert testimony was necessary. Without it, the plaintiffs could not support their claim.

We here at Abnormal Use know not whether the monitor’s software was in fact defective, but neither do those experts. There simply was not enough evidence. While some extenuated logic could deduce that the software was defective because the alarm was not heard, it doesn’t account for alternative explanations. Further, simply because something was not heard does not mean it didn’t sound. Expert testimony must still account for some objective criteria – or plaintiffs run the risk of overlooking essential elements of their claims.

Last week, we received a bit of good news!  After all the votes were tabulated, for the third consecutive year, Abnormal Use won the popular vote for the Torts category in the ABA Journal‘s 6th Annual Blawg 100.  Back in November, we were named one of the top 100 legal blogs by the editors of the ABA Journal, and as a part of that, we were placed into a category with four other well regarded Torts blogs, including our friends Walter Olson of Overlawyered, and Jim Beck, Will Sachse and Steve McConnell of the Drug and Device Law blog.

It was a privilege just to be included in that list.  As we’ve said time and time again, Walter and the Drug and Device Law guys inspired us to start this blog back in the day.

After publishing their list, the editors of the ABA Journal asked readers to vote upon their favorite blogs in each category.  We did a little campaigning, and the polls closed on December 21. You can see the final results in each category here. (We also congratulate friend of the blog Kevin Underhill of the Lowering the Bar blog for once again winning the popular vote in the “For Fun” category).

We urge you to check out some of the other blawgs on the ABA Journal‘s  list. Through this annual process, we have discovered some of our own personal favorites.  Plus, it’s nice to see some fine sites receive well deserved recognition, including Jeff Richardson’s iPhone J.D. blog, the great Law and the Multiverse blog, and even Maxwell Kennerly’s plaintiff-friendly Litigation & Trial blog.

We couldn’t have won it without the support of you, our dear readers.  Thanks again for voting for us, and of course, thanks for continuing to read our site!

Today is the last day of 2012 – which was never supposed due to the much hyped and still quite tardy Mayan apocalypse.  Even though this is an “official” work day, we here at Abnormal Use hope for an uneventful time at the office.  Like Archie before us (pictured above on the cover of Jughead with Archie Digest Magazine #97), the excitement of New Year’s Eve looms large.

Such anticipation can sometimes hamper productivity, or so we hear.

On this eve of the new year, we will be celebrating the past and looking forward to what lies ahead.  The year 2013 will be one for the ages.  While it offers no presidential election, we will observe the 150th anniversary of the Battle of Gettysburg.  We’re already awaiting the release of a new Star Trek film.  Further, 2013 is the first Twilight-less year in ages.  Yes, 2013 is going to be fantastic.

In the short term, New Year’s Eve packs plenty of excitement to carry over into the new era.  Whether you are watching a ball drop in Times Square or a possum fall in North Carolina, we hope that your New Year’s Eve is the fruitful culmination of all the memories of the past year. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a safe and happy evening.

Alas. The end is near. As you likely know, tomorrow – Friday, December 21, 2012 – marks the endpoint on the Mayan calendar – an occasion some have interpreted as the end of the world. Doomsday, if you will. The end of the world as we know it.  A total R.E.M. moment.  Now, we here at Abnormal Use don’t necessarily believe in such apocalyptic soothsaying. That kind of talk lacks logic and reason. But, we are no fools. If the world is to end tomorrow, we won’t be caught flat-footed. Expect us to spend the next twenty four hours seizing the day and gathering our rosebuds.

Things are about to get wild. So wild that we may even pause before responding to certain written discovery requests. Since we can live without fear of repercussions, we may even serve some pleadings by regular mail – without signing them! Dare we say, we may just move for summary judgment on the grounds that plaintiff’s claims are just downright silly! The possibilities are endless.

Why  are we concerning ourselves with pleadings and discovery when the apocalypse is upon us? Well, we are lawyers, after all. We need to cover all of our bases. We can run with the whole armageddon thing for a while, but we have learned from past experience. This 2012 thing wouldn’t be our first failed prophecy of doom. We are still paying the price for going a little nuts over Y2K. And the Hale-Bopp comet. Take our advice – have a contingency plan for the off-chance we are misreading the Mayan prophecy. We’ve even prepared tomorrow’s edition of Friday Links just in case!

We wish the best, and we hope to see you tomorrow. Cross your fingers.

During Halloween, we here at Abnormal Use pondered the potential tort claims present in all of those horror movies. With Christmas nearly upon us, we got to thinking. Although this month may not pose the dangers of the Halloween tort season, certainly, it is not a vacation from the law. Christmas, like Halloween, can also be a plaintiff’s dream.

Let’s start with the obvious: gift giving. Unfortunately, gifts cost money. What can happen when people don’t have money? Theft. Or as tort lawyers like to call it – trespass to chattels (or conversion). Earlier this month, a California man was arrested for stealing Christmas presents from an elderly couple. If convicted, he may face jail time and a tort suit.

Christmas is the season to be jolly, but all is not always so. Anytime family and friends gather, things are bound to get eventful. Just last week, a woman was arrested in New Zealand for biting off another woman’s fingernail at a work Christmas party. We are not well versed in Kiwi law, but we imagine this constitutes a battery worldwide. Not exactly what one wants from Santa.

Annually, we contemplate a nuisance claim against the local mall for incessant Christmas music in November. Some inmates in Phoenix had a similar idea against their prison, but, unfortunately, those claims were unsuccessful. Maybe we should instead target our neighbor’s tacky yard decorations. After all, is it truly necessary to display an inflatable Harley-riding Santa in the front yard?

Speaking of Santa, he may be the biggest holiday tortfeasor of them all. The man enters billions of houses year after year but never faces a trespass claim. Sure, he has permission from many property owners, but he must be unwanted somewhere. Why bother anyway? We imagine it would be nearly impossible to select an impartial jury.

Unfortunately, as Clark Griswold can attest, torts do not take a sabbatical over the holidays.  We imagine there are plenty that we have overlooked.

We welcome your comments on any you come across as you enjoy the holiday season.

Many states have some crazy, ancient laws on the books which no one would think of enforcing in the 21st century. For example, in Mississippi, cohabitation is punishable by a $500 fine and 6 months in prison. M.S. St. Section 97-29-1. South Carolina is no exception. Section 16-19-40 of the South Carolina Code, a modern version of a statute first enacted in 1802, makes playing cards in a “house used as a place of gaming” punishable by a $100 fine or 30 days in jail. With the increased popularity of poker, the statute could impose a problem if enforced.

But that would never happen, right?

Wrong. In South Carolina, we take our laws seriously.

In Town of Mt. Pleasant v. Chimento, No. 27197 (S.C. Nov. 21, 2012), the South Carolina Supreme Court was faced with a challenge to the constitutionality of the statute. The issue arose when the defendants were charged with violating the statute over a weekly Sunday night poker game among friends. Players would buy into the game for $5 and could purchase more chips as needed. The home owner would take a “rake” out of the pot to cover the costs of food and drinks. If the rake did not cover the expenses, then the “winners” would make a contribution to offset the costs. For reasons unspecified in the opinion, the authorities must have been alerted about this “gambling ring,” and the defendants charged. The defendants were convicted by the local magistrate. The circuit court, however, reversed the conviction, finding that it was not illegal to gamble on a game of skill and that a residence did not qualify as a “house used as a place of gaming.”

On appeal, the Supreme Court examined precedent and legislative history from the 1820’s and determined that a private residence could qualify as a house of gaming under the statute. Moreover, they disagreed with circuit court and found no distinction in the statutory text between games of skill and those of chance. In addition, the Court upheld the statute as the defendant lacked standing to challenge its constitutionality on void-for-vagueness grounds because their conduct “clearly” fell within its proscriptions.

While we here at Abnormal Use may abhor the statute, we must agree with the Court’s decision. The Court doesn’t write the laws, it interprets them. The legislature presumably had some legitimate purpose for crafting the statute (albeit 200 years ago), and it was the Court’s job to apply the statute to the facts of the case. Ridiculous law? Probably. Ridiculous result? Not based on the statutory language.

Seemingly outdated laws are on the books everywhere. It is the job of state legislatures – not the court – to repeal them when they are otherwise constitutional. In the meantime, check out the crazy laws in your state to avoid those potential hundred dollar fines.

Over the years, we here at Abnormal Use have shared with you our great love of American football.  In so doing, we have tried to keep you abreast with any football-related litigation.  We reported on several product liability suits against the NFL, including those regarding the risk of heat stroke and those involving the on-going concussion issue.  Recently, we even told you about a fan’s lawsuit against the Dallas Cowboys’ football stadium and, at the college level, we wrote of  the fabled South Carolina football parking lot jurisprudence.

Now, a former punter from the Houston Texans has sued the Harris County Convention and Sports Corporation, the agency that operates Reliant Stadium.  According to reports, Brett Hartmann tore his anterior cruciate ligament and fractured a bone when he allegedly caught his foot in a seam in the turf in a game against the Atlanta Falcons last December.  Hartmann alleges that the Stadium’s practice of piecing together 1,200, 8’x8′ palettes of grass prior to every home game creates an “unsafe turf” condition.

As a result of the seam between the palettes, the punter allegedly suffered a “significant and career-threatening injury.”

This suit is intriguing on several levels.  First, this is not a claim in which the player was injured because the surface was “hard,” as claims of that type have little chance of making it past the summary judgment stage.  Rather, this premises liability claim identifies a specific, allegedly dangerous condition on the playing surface.  Even though the condition may have been open and obvious to Hartmann, it is also unlikely that it is one that he could have avoided during the course of a game.

Second, it is questionable whether the seams are a dangerous condition.  The field is examined by the NFL and officials prior to every game; it has never been declared unfit for play.  The suit cites several players and coaches of other teams who have been quoted about a poor playing surface.  Those quotes, however, speak generally about the turf and not specifically about the seams.  As such, we don’t have enough information to determine whether the seams – if they exist – are in fact dangerous and the cause of Hartmann’s injuries.

Finally, while there is no disputing the injuries, it is uncertain whether this incident is the reason Hartmann’s career is “threatened.”  For starters, he was released just prior to his only season in the NFL before being picked up by the Texans.  Following his surgery, he was suspended the first 4 games of the 2012 season for violating the NFL’s substance abuse policy.  After that suspension was reduced to three games, he was suspended an additional eight games for testing positive for a prescription weight-loss drug.

Hartmann denies the allegations but has chosen not to appeal so as not to delay a return for the 2013 season.  Nonetheless, there may be other factors at play here.

We here at Abnormal Use are pleased and honored to announce that our humble little blog has been once again named to the ABA Journal‘s Blawg 100, the “annual list of the best of the blawgosphere.” This is now the third year in a row we have been named to the list, and we remain humbled by the recognition.

We’re in good company, and the honor is most certainly compounded by the other prestigious blogs that made the list, including our friends at Jim Beck and Steve McConnell’s Drug and Device Law, Jeff Richardson’s iPhone J.D., James Daily and Ryan Davidson’s Law and the Multiverse blog, Max Kennerly’s Litigation & Trial law blog, Kevin Underhill’s Lowering the Bar, and, of course, Walter Olson’s Overlawyered. For the full list, and links to all of the blogs and their corresponding Twitter feeds, please see here and here.

We must thank our firm, Gallivan, White, & Boyd, P.A. for whole-heartedly supporting this project all the way from its beginning in January of 2010.  Has it been that long? And, of course, we simply could not do this without the assistance of our clever and indefatigable (and indefatigably clever) bloggers: Steve Buckingham, Frances Zacher, Rob Green, and Nick Farr.

Finally, without the support of you, our dear readers, this would all be for naught.  Each day, we are elated to learn that people are visiting – and even reading! – our fair site.  Thank you for that.

We thank everyone who nominated us for inclusion in the list. We’ve got just one more favor to ask. After announcing the final 100 blawgs, the ABA Journal is now asking its readers to vote for the best of the final 100 in 12 substantive categories. Our blog is included in the Torts category, and we ask that you register at the ABA Journal‘s site and cast a vote for us here.

It’ll only take a few moments to register and vote, and we’d be forever in your debt.

Thanks again for your continued support. We look forward to bringing you another year unreasonably dangerous product liability news. Who knows what may be in store next?

We here at Abnormal Use are no strangers to the courtroom. Recently, we have tried a string of cases in magistrates court – South Carolina’s venue for litigating small claims. While the claims may be small (the jurisdictional limit is $7,500), the experience can produce just as many teachable moments as those in the circuit court. Accordingly, we have compiled a few tips for those navigating the perilous venue.

Prepare, then be prepared to toss it out.

Like any other trial, you fully prepare your case. Don’t think that because the claims are smaller you can just roll out of bed and be successful. You owe it to yourself and your client to treat all cases as if they are worthy of the Supreme Court.

With that said, be prepared to trash anything you planned after trial begins. In South Carolina, like many jurisdictions, there is no discovery in magistrate court. No interrogatories. No depositions. No pretrial disclosures. Most often, every witness or exhibit presented by the other side is of the “surprise” variety. You must rely on your own informal discovery, the main source of which is often your client.

When you discover that your client’s version of events may be different (and perhaps, wrong) than that of the plaintiff, you must be prepared to alter your trial strategy on the fly. This often means discarding those materials  you tirelessly prepared to counteract all of those unexpected surprises. No matter how much you prepared, something unexpected will arise. Be thankful you prepared enough to recognize it.

Manage the courtroom.

Often times, small claims court involves pro se plaintiffs. On the one hand, trying cases against pro se litigants is easier because they may not be as prepared to present their cases as seasoned lawyers. On the other, it adds a whole new set of unexpected difficulties. Judges may give pro se parties some slack, but sometimes, their generosity knows no bounds. If the pro se plaintiff answers all of your questions on cross-examination by asking you the same question, instruct her that you get to ask the questions. If someone from the peanut gallery tries to answer the questions for her, be prepared to instruct him on procedure – you may be the only person that can do it (particularly if the presiding judge is not a lawyer). Most of all, don’t be afraid to remind the judge that while the rules are relaxed, they haven’t been discarded altogether. Just because the pro se plaintiff forgot to introduce any of his evidence during trial, it does not mean that he should be allowed to hand deliver it to the jury during deliberations.

Expect the unexpected (sensing a theme here?).

The unexpected is not limited to an unknown witness or unanticipated testimony. The unexpected can also come from things unrelated to the trial itself. Don’t be surprised when you have to walk around a giant bag of pecans every time you return to your seat. When the pro se plaintiff’s father yells at the judge that he has to use the bathroom during your closing argument, just roll with it. After all, these unexpected happenings make for the best stories.