Two weeks ago, we here at Abnormal Use offered our review of Plaintiff’s attorney Susan Saladoff‘s anti-tort reform documentary, Hot Coffee, which discussed, in part, the infamous Stella Liebeck McDonald’s hot coffee case.   We were critical of the film, chastising Saladoff for her editorial choices and potential lack of objectivity, particularly in light of her past as a trial lawyer and affiliation with numerous Plaintiff’s lawyers organizations.  Tonight, at 10/9 Central on the ReelzChannel, filmmaker Brian J. Kelly premieres his own documentary and analysis of the courts, InJustice. This project was funded in part by the U.S. Chamber of Commerce, one of Saladoff’s favorite targets in her own film.  Just as we warned you of Saladoff’s possible bias, so too must we advise you that Kelly’s documentary (which excoriates the legal system and the Plaintiff’s bar in particular) may not come from the most objective of sources.  Kelly was kind enough to grant us an interview regarding the film and its agenda.

InJustice purports to offer an in-depth look at the rise and fall of the so-called “kings of torts,” the wealthy and successful Plaintiff’s lawyers like Richard Scruggs, Melvyn Weiss, and William Lerach.  In so doing, Kelly seeks to illustrate the alleged faults of America’s litigation system.  Using interviews with lawyers, InJustice suggests that class-action attorneys have enriched themselves by perpetrating questionable asbestosis, silicosis, tobacco, and securities litigation, while their clients see little, if any, of the spoils.  The film also highlights how these kings of tort made their fortunes outside of the courtroom.  Specifically, the film digs up a quote by Scruggs, who apparently once remarked that the practice of law is a three-legged stool:  legal tactics, political pressure, and public relations.  The men used this hypothetical three-legged stool to perfection, pressuring corporate defendants into settling allegedly baseless claims without ever actually taking the cases to trial.  The men appeared invincible until their questionable tactics backfired on them.  InJustice closes with the story of how each man found himself facing his own judicial woes: judicial bribery (Scruggs), concealing illegal payments to clients (Lerach), and conspiring to improperly pay off plaintiffs (Weiss).

InJustice features interviews with defense lawyers who practiced with Scruggs, Weiss, and Lerach; however, the most compelling interview probably comes from attorney Charles Merkel, Jr., who described Scruggs’ use of the three-legged stool analogy.   Through these interviews, the film aims to demonstrate how well-trained plaintiff’s lawyers can manipulate the system and make millions of dollars without ever seeing the inside of the courtroom.  The story is intriguing and well-told; however, we here at Abnormal Use question whether these so-called kings of tort are a representative sample of the civil litigation system.

Like Hot Coffee before it, InJustice advances an agenda, and Kelly does so well.  Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain.  Certainly, the extrajudicial tactics, coupled with the criminal consequences, of the film’s subjects may leave many viewers believing corporations are often the victims in trumped up class action lawsuits.  However, as noted above, InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.

Unlike Saladoff, Kelly is not a lawyer.  Prior to making his new documentary, he made films about such things as the Blue Angels and the Cuban Missile Crisis. However, just like Saladoff, Kelly uses the documentary medium to promote his own opinions about the faults of the legal system. Like Saladoff before him, Kelly acknowledges that there are two sides to every story.  In an interview with Abnormal Use, Kelly insisted that he “tried to look at the other side that’s not typically covered.”  Unlike Hot Coffee, which Kelly believes is “based on opinion,” Kelly told us that with InJustice, he was looking at “right and wrong.”  In a sense, Kelly is correct – InJustice does focus on fully adjudicated cases and leaves much of the speculation up to the viewers themselves.  However, InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole. In fact, it was Kelly own bad experience with the legal system that prompted his desire to make the film.  In a recent interview, Kelly told The Blog of Legal Times that he decided to pursue the project, in part, due lawsuit filed against him by a prior tenant.  Kelly prevailed in the suit, but only after amassing $80,000 in expenses defending against the plaintiff’s claims.

Not only does Kelly exhibit a potential bias against the legal system due to that suit, so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform.  In our interview , Kelly noted that he initially pitched the film to cable network channels such as the Discovery Channel but received little interest.  A business associate in Washington, DC connected Kelly with the U.S. Chamber of Commerce, which ultimately invested in the project. Kelly insists that he accepted their support only upon the precondition that he would maintain editorial control.  Says Kelly: “We were able to work out a deal where they knew what we were out to do.  They really had to let us go and trust us to do what we set out to do.”  However, in the screener of the film we saw, the U.S. Chamber of Commerce is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and  here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Indeed, we here at Abnormal Use were initially contacted about the film by a Washington, DC consulting firm, Hamilton Place Strategies.  On its website, Hamilton Place bills itself as a bipartisan policy and communications firm, an odd entity to be promoting a television documentary film.  The firm’s public policy advisory unit, HPS Insight, was founded by two alumni of the George W. Bush administration.  Further, that firm’s partners include members of President George W. Bush’s staff and advisers to Senator John McCain and Representative Paul Ryan.  If the firm has any members affiliated with the Democratic Party or more liberal groups, it was not readily apparent on the website.

We’re somewhat troubled by the arrival of two documentaries arriving with weeks of each other both attacking the judicial system from different perspectives. If Hot Coffee and InJustice were screened together, many viewers would probably leave the theater believing that the denizens of our judicial system – from the Plaintiffs lawyers suing corporations to the corporate defendants themselves – are corrupt and dominated by parties only out to protect their own self-interests by whatever means necessary. As officers of the court, we’re not sure that’s the best message to send, nor do we believe that the system is beyond repair (or even as disabled as Saladoff and Kelly contend).  Hot Coffee and InJustice both fail in one key aspect – they focus on exceptions rather than rules.  Saladoff’s selective presentation of the cases in Hot Coffee does not mean that tort reform is unnecessary, nor does Kelly’s highlighting of the ill-advised tactics of Scruggs and Weiss offer proof that all trial lawyers are somehow sinister and corrupt.  The cases presented in these two films are sensationalized exceptions, not the judicial norm.  In the end, though, InJustice is an opinion piece no better or worse than Hot Coffee.

Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.  We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January.  We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name.  In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.”  Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener.  With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform.  Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform.  Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages.  Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.”  Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers.  After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it.  As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics  are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded.  Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case.  After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.”  Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.”  Those are bold statements.  Yet the 88 minute film dedicates only ten minutes to the Liebeck case.  If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions.  Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(2) Liebeck was actually injured; she suffered second- and third-degree burns;

(3) McDonald’s policy was to serve coffee between 180-190 degrees;

(4) McDonald’s had been notified of 700 prior burnings;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick.  Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous.  In fact, Saladoff neglects to address the point often made here at Abnormal Use:  coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer.  This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot.  Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted.  (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse.  Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice.  Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct.  Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates.  The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber.  But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate.  This seems a bit unfair, right?  Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws?  Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit  reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.).  Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money.  The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases.  And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . .  These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information.  And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq.  By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform.  Of course, trial lawyers like Saladoff benefit in the best of ways: financially.  The larger the verdict for the plaintiff, the larger the payday for the trial lawyer.  It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized.  In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity.  (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.”  As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.”  Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense.  Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal  Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

The film premiers tonight on HBO at 9/8 Central.

Yesterday, Abnormal Use became more than an awarding-winning legal blog.  We became an award-winning legal blog that was quoted on the radio.  That’s right, the radio!

On NPR’s “Here & Now,” the host used two of our former blog posts on the Stella Liebeck McDonald’s hot coffee case in an interview with Susan Saladoff.   Saladoff, as you might recall, is the former plaintiff’s attorney who has created the anti-tort reform documentary, Hot Coffee. You can listen to that interview here (Abnormal Use comes in around the 10:35 mark).

You can re-read the posts cited by the host here and here.

Tonight at 10/9 Central, the USA Network premieres its new legal drama, “Suits,”  which centers around high-powered corporate attorney Harvey Spector (Gabriel Macht) and his “pseudo-associate” Mike Ross (Patrick J. Adams).  We here at Abnormal Use obtained an advance screener of tonight’s pilot, and we enjoyed some of what we saw.   At its outset, “Suits” appears to be like every other legal drama past and present.  Mega-profile attorney, thousand dollar suit, big city firm – you get the picture.  However, “Suits” quickly adds a new – albeit unethical – twist to the genre.

With only a few minor, minor spoilers, the basic premise is as follows:  After achieving the position of Senior Partner, Spector is given the opportunity to hire his own associate.  Bored with the blandness of each “Harvard douche” applicant, Spector encounters good guy with tough luck Ross, who enters the interview room to hide from the police after a drug deal gone bad.  Spector is intrigued by Ross, who shares his same charisma and possesses an unparalleled photographic memory.  There is only one problem – despite acing the LSAT on numerous occasions, Ross has never attended law school.   Not one to to let a simple thing like a law license get in his way, Spector hires Ross as his new associate.

From this brief synopsis, it is readily apparent to any attorney what is wrong with “Suits.”  The show is an ethical conundrum.  Even beyond the unauthorized practice of law, the “finding good in an unethical situation” theme is persistent.  For example, in one scene we see Spector lying to a client who threatens to fire the firm while simultaneously accusing the client of acting in bad faith.  Lies and deceit do little to aid the already negative perception of lawyers in our society.  To make matters worse, it is this deceit which lands Spector the Senior Partner-gig and the opportunity to hire Ross.  Apparently Spector was wrong – bad faith does pay.

As bad as Spector’s interactions with clients might be, it is the prominence of an unlicensed attorney which pushes “Suits” into an ethical chasm.  As much as Spector makes any respectable attorney cringe, Ross is equally as enjoyable.  For starters, he’s brilliant.  He memorized BarBri’s bar review materials word-for-word and displayed legal knowledge far superior to any first-year associate we have encountered.  In addition, Ross displays a concern for clients visibly lacking in Spector.  Ross certainly has the potential to be an effective lawyer.  Unfortunately, however, someone forgot to remind the writers that the days of the apprenticeship have long been abandoned in the legal profession.  We can buy the smart guy wanting to be lawyer concept, but Spector’s decision to hire Ross knowing that, if caught, he undoubtedly would lose his license seems a bit absurd.  Of course, absurdity often makes for the best television.

We shouldn’t be surprised that a legal drama would depict lawyers in unethical situations.  Unfortunately, it is what people have come to expect.  The problem is that the show’s most noble character is the one rooted in the deepest ethical paradox.  Is “Suits” suggesting that law school is what strips us of all morality?  Are we not as smart as we think we are?  Are we replaceble by any person off the street with a photographic memory?  We here at Abnormal Use would like to think we are worth a little more than that.

The show’s ethical problems are so prevalent that they overshadow its legal inaccuracies.  Who cares that depositions can be scheduled on one day’s notice when it is an unlicensed lawyer signing the subpoenas?  We were hardly surprised to see Ross electing to move to sanction opposing counsel for failure to comply with the discovery requests he served only one day prior.  “Suits” is hardly an exhibition on civil procedure.

With all of its problems, however, “Suits” is a rather enjoyable show.  Everything that makes “Suits” bad from a legal standpoint makes it great for viewers.   We can appreciate Ross as the unexpected David competing against his Goliath Harvard-law co-workers.  As bad as Spector’s tactics may be, they are much more entertaining than watching some nice guy who refuses to push the bounds of civility.  While we do not condone the replication of Spector’s conduct in real life, Macht plays the part well and adds some excitement to the bland world of settlement negotiation.  If nothing else, Spector and Ross are well cast and believable, albeit in unbelievable situations.

After viewing only the pilot episode, we have no idea what direction “Suits” may take.  We anticipate Spector will develop morally through his relationship with his noble apprentice, while Ross continues to find himself in weekly shenanigans to hide his qualifications.  To be honest, as attorneys, we here at Abnormal Use are most anxious to see what happens after Ross graduates from the rank of first-year associate and actually has to sign his own pleadings and appear solo in court.  How long can this charade last before someone checks Ross’ bar number in the system?

Like South Park, we suggest attorneys check their ethical standards at the door before watching the program.  By doing so, “Suits” becomes less like an administration of the MPRE and more like a drama worth staying up until 10:00 to watch.  Spector and Ross are brilliantly cast and the show has great potential to break the David E. Kelley stranglehold on successful legal shows.  Don’t expect to see a microcosm of the true-to-life legal profession, but expect an entertaining 90-minutes which will leave you calendaring the show for the next week.

In what now seems like an everyday occurrence, scientists continue to discover more and more items that allegedly cause cancer.  Even items such as deodorant, Vitamin E supplements, sun screen, and mouthwash, which are only in the stream of commerce to provide some benefit to consumers, have been linked to the dreadful disease.  Recently, when the World Health Organization issued a report that radiation from cell phones can cause cancer, we here at Abnormal Use were not surprised.

Before you start trading in your cell phones and returning to the rotary phones of yesteryear, we suggest taking a closer look at the WHO study.  The study indicates that cell phones can possibly cause cancer, not that cell phones do cause cancer.  The study is an indicator that some evidence suggests that there may be a link between cell phones and cancer.  While we are not research scientists, it is our understanding that cancer can develop over long periods of time and be caused by a number of factors (including deodorant and mouthwash, apparently).  In order to definitively state that cell phones cause cancer, the WHO would need to conduct a series of longitudinal studies, rule out the plethora of other environmental factors, and attempt to replicate its findings.  The WHO, comprised of scientists from 14 countries, understands the art of valid research and has not leaped to the typical conclusory allegations of third-rate operations.  The WHO has simply recognized that there is at least some evidence of a link, and it would be in the best interest of all to at least warn the public.

The much more pressing question at this time is the effect of the WHO study on potential litigation.  The WHO study came just days before the U.S. Supreme Court was set to decide whether the plaintiffs’ claims in a proposed class action against 19 defendants, mostly cell phone manufacturers, were preempted by federal law.  The plaintiffs’ have claimed that cell phone manufacturers misrepresented the safety of cell phones when they knew of the safety risks.

Even if the Supreme Court holds that the plaintiffs’ claims were not preempted by federal law, it is difficult to see how potential plaintiffs can prevail against cell phone manufacturers.  Despite the WHO’s findings, plaintiffs will have a difficult time proving that cell phones are the cause of their cancer.  With the extensive list of things researchers have suggested may cause cancer, questions of whether plaintiffs would not have developed cancer “but for” the use of cell phones are difficult to determine.  Did the plaintiff ever have an x-ray?  A cold?  Did the plaintiff use tooth whitener?  These are only a few things that studies have indicated may cause cancer.  If the plaintiffs wish to use the WHO study as evidence, we suggest they be forced to rule out all the other reports, as well.

We do not know whether or not cell phones actually cause cancer.  Only time will tell.  In the meantime, we here at Abnormal Use will continue to use our cell phones and add them to the never-ending list of things that are going to one day give us cancer.  If you wish to be a little more cautious, please don’t just throw your phone away.  Certainly that radiation can be put to good use.  Defrost frozen food?  Pop popcorn?  There has to be an app for that.

Noted Plaintiff’s attorney turned filmmaker Susan Saladoff has created quite a buzz with her documentary, Hot Coffee. The anti-tort reform film, which derives its title from the infamous McDonald’s hot coffee case, premiered at the prestigious Sundance film festival and will air on HBO later this month.  As if Sundance and HBO were not enough, Hot Coffee has even been given its own feature role here on Abnormal Use.  With all of this success, how will Saladoff ever be able to find another frivolous misunderstood case  to use to cash-in document?  Thankfully, we know that Saladoff reads Abnormal Use, and we have discovered the subject-matter for the perfect Hot Coffee sequel. Here’s our free advice.

A Pennsylvania woman has sued Dunkin’ Donuts for personal injuries after drinking a cup of coffee purchased from one of the chain’s Philadelphia locations.  According to the complaint, the woman ordered coffee with artificial sweetener, but the Dunkin’ Donuts employee mistakenly used sugar.  The sugar mix-up allegedly caused the lady to enter into diabetic shock.  As a result, she has had to alter her diabetes medication and has “sustained a loss of enjoyment of life.”

With Hot Coffee, Saladoff formulated the perfect equation for the anti-tort reform documentary:  sympathetic plaintiff + big corporation + morning beverage = success.  This recent action fits perfectly within the criteria.

Sympathetic Plaintiff

The first rule of film-making is that audiences can be hypnotized by conflict faced by marginalized characters.  Instead of an elderly woman as in the McDonald’s case, this case features a medication-dependent diabetic.  Similar to their reaction to children and the elderly, audiences will naturally sympathize with people having pre-existing conditions.  Certainly each of Dunkin’ Donuts employees should have known the medical history of each patron prior to filling an order.  At the very least, they should have been instructed that each customer is a potential egg shell plaintiff and that the substitution of sugar for artificial sweetener could result in the “loss of enjoyment of life.”

Big Corporation

The second rule of film-making is that when given the choice between David and Goliath, audiences choose David.  In Hot Coffee, Saladoff was able to garner greater sympathy for Stella Liebeck by suggesting that McDonald’s flexed its billion-dollar muscles and engaged in a public disinformation campaign to alter the public perception of the lawsuit.  While McDonald’s has not meaningfully commented on the hot coffee case since the 1990’s, Dunkin’ Donuts has already made a public statement.  According to the report, Dunkin’ Donuts’ legal liaison in the Philadelphia-region said:

[W]e encounter thousands and thousands of customers on a daily basis.  We don’t provide a customer with anything they don’t request.  If they request a medium coffee, they will get a medium coffee.  If you fail to request a sugar substitute , we can’t read your mind.  We sell doughnuts, not crystal balls.

It is so much easier to mischaracterize the statements of a corporate representative when he or she has the nerve to suggest the plaintiff was contributorily negligent.  By using this case, Saladoff wouldn’t even have to undertake her own disinformation campaign in response.

Morning Beverage

The final rule of film-making must be the inclusion of a standard morning beverage, preferably one which is consumed without incident every day for years before causing a problem. Unfortunately, after Saladoff’s documentary, hot coffee cases have now run their course.  Those suits now happen all the time because restaurants still haven’t learned that their patrons prefer their coffee to be served cold.  But people have now grown tired of these stories.

Saladoff needs something new, something that will really get an audience fired up.  Since we here at Abnormal Use are unaware of any defective orange juice cases, sweet coffee will have to do the trick.  Like the dangers of hot coffee, it is obviously foreseeable that the substitution of one teaspoon of sugar in a cup of coffee can have dire consequences.  We suggest ignoring any evidence that the plaintiff negligently forgot to request artificial sweetener.  These types of omissions happen all the time in documentary editing.  After all, you can only put so much information in a film before it becomes the next War and Peace.

After a careful review of the recent Dunkin’ Donuts action, we find that with a little exaggeration careful editing, the foundation for a successful documentary has been laid.  Because we here at Abnormal Use have so enjoyed Saladoff’s contributions to our blawg, we would like to return the favor and name her next great documentary – Sweet Coffee:  Why Didn’t I Just Mix It Myself?

Remember a few months ago when we – along with our pals at the Drug and Device Law blog – compiled a list of all of the rock songs mentioning lawyers? It was during that time that we discovered Chuck Brodsky’s song, “Talk To My Lawyer,” which we enjoyed and included on our list. Brodsky‘s “Talk To My Lawyer” chronicles a series of relatively minor events and their potential as lawsuits if presented to the proper lawyer.  While we have grown weary of lawyer jokes over the years, we couldn’t help but chuckle when he heard Brodsky’s tune and its reference to the infamous Stella Liebeck McDonald’s hot coffee case. We soon learned that Mr. Brodsky lives in nearby Asheville, North Carolina, so we felt we had to contact him and request an interview about the genesis of the song. So, today, Abnormal Use once again continues its series, “Abnormal Interviews,” in which the site will conduct brief interviews with law professors, practitioners, and makers of legal themed popular culture.  Note: Brodsky will be performing live this Friday night at a CD release party at The Grey Eagle rock club in Asheville, North Carolina, and we suspect he may play “Talk To My Lawyer” at that show. Finally, for those who’ve not heard the song, though, here is a video of him singing that wonderful ode to litigiousness at the Shrewsbury Folk Festival. Watch it, and then read the interview which follows.

1)  What was your inspiration to write “Talk To My Lawyer”?

Well, at the time I wrote it many years ago, probably, if I had to guess, I’d say around 1990, give or take a couple of years. I think there were just a lot of frivolous lawsuits flying around at the time.  Maybe even the McDonald’s coffee case.  I can’t remember exactly because it was so long ago, but I think it was a way to have a laugh at it, treat it with irony.

2)  Did you ever want to be a lawyer?

I joke that I do.  When I’m on stage I often tell people that I wanted to be a lawyer but my parents talked me into being a folk singer.

3)  [Besides the McDonald’s case] were there any other cases in the news that inspired any of the verses?

Not any one that I can recall after all these years but you know . . . frivolous cases come up all the time.  There probably were several that were in the news at the time, maybe a couple.  Why not have a little bit of fun writing about them?

4)  Have you had any comments from lawyers about the song?

Yeah.  Lots, and they tend to really get a laugh out of it.  It’s pretty popular.  I’ve had law firms that have bought a copy of the CD with the song on it for all their partners and employees.  I’ve never had any lawyers that didn’t laugh.  Nobody has came up to me and has taken offense.  Never meant to be offensive.  Just a little bit of irony, little way we can laugh at ourselves.

5)  How would you describe your music both stylistically and lyrically?

Well, I think I pay a lot of attention to detail.  I think my music is rooted in traditional music. . . or Americana type singer-songwriter.  I think my lyrics all have something to say.  I don’t ever write a song that’s meaningless in my opinion.  I like to tell stories, but not all of my songs are story songs.  The ones that are tend to be about real people that inspire me to words that I feel are touching and might touch other people.  But I also have commentary in my songs about the world as it is and my feelings about it.  I feel like my songs are honest.  I try to be honest.  I try to address real issues, but not in a way that makes anybody feel excluded.  That’s really not what it’s about.  It’s about making everybody feel welcome and part of it.

6)  Are you excited about playing the Gray Eagle?

I’m very excited.  I live in Asheville, and I only play there a couple of times a year and this particular show will be a CD release for a brand new album [Subtotal Eclipse].  I’m very excited.

BONUS QUESTION:  What is your favorite song about lawyers or legal themes?

Mine.  I don’t really know of any others to be honest.  I said that half jokingly.  I really am not aware of any other songs.  Oh, Warren Zevon has a song, “Lawyers, Guns and Money.”

BIOGRAPHY: Chuck Brodsky is a singer-songwriter whose music has been influenced by the mountains of Western North Carolina and traditional folk.  His song, “Radio,” appeared in the feature film of the same name.  Brodsky, born in Philadelphia, Pennsylvania, now resides in Asheville, North Carolina.

On The Discovery Channel’s Man vs. Wild, Bear Grylls travels to some of the globe’s most remote areas to demonstrate how a stranded traveler might survive.  Notable among Grylls’ survival techniques is his penchant to catch and eat snakes – raw.  Raw snake does not sound appetizing to our sophisticated palates, but allow me to commend Grylls for demonstrating the benefits of consuming meat in its most natural form.  While these animalistic methods might be useful on Man vs. Wild, North Carolina isn’t buying it.

Last week, our friends at Overlawyered alerted us to a law in North Carolina which makes serving rare or medium-rare hamburgers illegal.  According to this report from America Online, the North Carolina Division of Environmental Health requires that restaurants cook ground beef to an internal temperature of 155 degrees Fahrenheit.  The restriction, which does not apply to steaks, has been implemented to reduce the likelihood of Salmonella and Escherichia coli O157:H7.

While we admit that the sight of a bleeding piece of meat may actually be less appetizing than a live snake, we must question the necessity of the North Carolina regulation.  There is no fault in trying to protect the health and safety of your citizens, and there is no disputing the contamination concerns of ground beef.  However, it seems a little un-American to dictate how a hamburger is to served .  We need to check with Justice Scalia, but certainly the Framers of our Constitution intended free hamburger choice to be an inalienable right.

North Carolina has considered adopting the United States Food and Drug Administration standard which allows restaurants to serve rare and medium-rare hamburgers so long as a disclaimer is printed on the menus.  While we support giving individuals the choice of meat preparedness, by doing this, it appears that North Carolina is more concerned about restaurant liability than citizen health.  Apparently, the potential for food poisoning can be overlooked as long as you are aware that you are assuming the risk.

We here at Abnormal Use do not believe that Bear Grylls would recommend eating raw food on a regular basis when properly prepared options are available.  In the case of the hamburger, however, we do feel that Americans should have a choice.  If raw meat is good enough for Grylls, certainly a rare hamburger is good enough for North Carolinians.

Recently, the estates of Pennsylvania couple, Sean and Natalie Wain, filed a product liability lawsuit against Pfizer in the United States District Court for the Western District of Pennsylvania. The complaint alleged that the pharmaceutical company’s smoking cessation drug, Chantix, caused Wain to experience psychotic rage, shoot and kill his wife, and commit suicide in May 2009. Allegedly, Wain had been taking the drug for one or two weeks prior to the incident.

This action is only the most recent in a long line of Chantix-related claims. Over 100 lawsuits have been filed against Pfizer alleging that plaintiffs or their decedents committed suicide, suffered severe injury attempting to commit suicide, or exhibited unusual behavior after taking Chantix. Besides the consumption of Chantix, there is only one other apparent similarity among the plaintiffs – they were all deprived of cigarettes.

Being deprived of an addiction is difficult even without the alleged side effects of medication. We here at Abnormal Use know this all too well. No phone messages are checked or emails are read at the office until we get our first taste of coffee in the morning. On those rare occasions when that fresh nectar is not immediately available upon our arrival, we get a little angry. Our indignation only escalates as we await the percolation of our precious drink to relieve us of the perils of our temporary detoxification. While we have never reached the level of “psychotic rage,” we have also never been deprived of coffee for two weeks.

According to a study by the Institute of Safe Medication Practices, Chantix was shown to create violent behavior when users first began taking the drug, often before they had completely stopped smoking. The study also noted that the violent behavior ceased for 93 percent of the participants after they quit taking Chantix.

While this study may appear to be damning for Pfizer, a closer look indicates that it may not be as conclusive as the plaintiffs desire. First, the study was a mere compilation of Chantix adverse event reports submitted to the FDA. By limiting itself to the 78 reports submitted to the FDA and not examining the thousands of other Chantix users, the study lacks the ability to paint a global picture of the drug’s side effects. Second, this was not a controlled research study. The Institute did not gather a representative sample of individuals who wished to quit smoking. They did not study the individuals prior to the consumption of the drug. They did not administer any placebos. This study is far from what one would expect of viable scientific research.Without a controlled environment, the study lacked the ability to factor in third variables. By examining only cases reported to the FDA, at best, the study reveals correlation – not causation. With these limititations, suggesting that it is Chantix, not the process of quitting smoking, which is causing these side effects is premature.

We do not mean to suggest that these plaintiffs did not display violent behavior after taking Chantix. Nor do we suggest that quitting smoking always leads to psychotic rage. Rather, we suggest that we withhold judgment of Pfizer and Chantix before making sure that no other factors are at play. Of course, if making rash conclusions is your addiction, we know how withholding judgment may make you feel.