If you are an exercise ball manufacturer, you may not be overly concerned about huge damages arising from a defective product.  What’s the worst that could happen?  Perhaps a ball explodes and someone falls a short distance to the ground (which might also be padded itself)?  Generally, this litigation is not of the “bet the company lawsuit” variety, of course, the injured person and Plaintiff is an NBA basketball player with a $6 million annual salary.  As we previously noted, that very scenario happened in California, and it resulted in a hefty, confidential settlement.

According to a lawsuit filed by both the Sacramento Kings and forward Francisco Garcia, Garcia was balancing on an exercise ball while simultaneously lifting two 90 pound weights.  Thereupon, the ball allegedly burst, and he fell to the ground.  Garcia suffered a right arm fracture and missed four months of the NBA season.  The Kings paid Garcia nearly $4 million during the off time.

The ball at issue was manufactured by Ledraplastic. The lawsuit alleges such balls were warranted to withstand 600 pounds and to be “burst resistant.”

The Kings alleged that Ledraplastic breach of the manufacturer’s warranty and sought over $4 million in damages for Garcia’s salary.  Garcia sought an unspecified amount of damages for pain and suffering, along with reduced future earning capacity.  Not surprisingly, this case settled out of court and the financial terms of the settlement are undisclosed.

We would have liked to see this one litigate a bit further, actually. New reports did not indicate how much discovery was conducted, but we wonder if Garcia was deposed.  How often had he used the ball while simultaneously lifting weights? Where did he get the idea that the ball could withstand both him and the free weights?   Was there literature suggesting that such usage was appropriate and safe?  What warnings were in play? These issues were obviously a part of the suit (or at least the settlement negotiations), as the Sacramento Bee reported:

As part of the agreement to keep the financial terms of the settlement secret, Ledraplastic, an Italian firm, agreed to circulate a letter informing and reminding all distributors that Gymnic fit balls should be used with only body weight and never with weights, and advising distributors to forward the letter to customers.

Interesting.  If a similar accident occurs in the future, we suspect those letters will be further litigated.  We’ll see.

Nearly everyone knows of the infamous McDonald’s hot coffee lawsuit.  For those of you who have followed the Abnormal Use law blog for a while, you know that we have covered the topic in great depth (a/k/a ad nauseam).  Well, now, there’s a new spin on this old classic.  Hot tequila!  That’s right: An Ohio man is suing a bar for allegedly serving him a shot of tequila that was mixed with extract from one of the spiciest peppers in the world.

Brady Bennett filed suit against Adobe Gila’s at The Greene in Beavercreek, Ohio,  alleging that a bartender negligently served him a shot of tequila with ghost pepper extract.  According to Bennett’s attorney, Bennett and his friend were out for a night on the town when the bartender offered them a round of shots.  Bennett claims the group ordered a manly round of tequila shots with apple flavoring, but Bennett alleges that the bartender gave them the old switch-a-roo with the ghost pepper extract.

Upon taking the shot, Bennett allegedly fell to the ground in pain as his throat swelled shut.  He was taken to the hospital and was ultimately just fine.

So what exactly is ghost pepper extract? Ghost pepper extract is one of the hottest peppers short of weapons grade pepper spray.  Pepper spray comes in between 2 to 5 million on the Scoville scale.  Ghost pepper, which is actually intended for use in foods and not incapacitating criminals, comes in right behind at just under 1 million on the scale.   By comparison, a jalapeno pepper is only around 10,000 Scoville units.

Serving a ghost pepper shot to a patron without a warning would certainly qualify as negligence.  However, the claim seems a little suspect.  It’s not like we are talking about Tabasco sauce.  What bartender would a) have ghost pepper extract handy at the bar and b) think to put it in shot?  Maybe the bartender was Loyd Christmas from Dumb and Dumber.  According to the restaurant’s owner, they don’t even stock ghost pepper extract at their facilities.  He did, however, admit that there may have been hot sauce in the shot.

Apparently, in addition to damages for medical expenses, Bennett also seeks damages for some real intense pain and suffering.  Bennett’s attorney told the Dayton Daily News, “Over the course of the next two weeks, when he has to go to the bathroom, it is an excruciating experience.” Ouch.

As a former Texas resident, I can attest to the fact that Texans love their guns.  Now, with 3D printers becoming more readily available, a University of Texas at Austin student decided that the most logical thing to do is print a gun and then share the plans on the Internet.  UT law student Cody Wilson claims he is roughly three weeks away from using a 3D printer to printing a gun, the plans for which he will share online.  It seems a regulatory and legal firestorm will not be far behind.

A 3D printer is a machine that creates three-dimensional solid objects from digital designs.  It essentially combines thin strips of metal or plastic resin to make solid parts.  Once printed, the user can take the parts and combine them to make mechanical objects such as a clock.  This technology sounds pretty cool, but it obviously raises a host of issues in the realm of intellectual property.  However, these IP theft issues are nothing new.  The music industry has been facing them since the era of blank cassette tapes.

But 3D printers also present a whole knew Pandora’s Box of legal problems.  While it has been legal to manufacture firearms for your own use, it has been cost prohibitive and difficult to make anything beyond a glorified toy. Now, people such as Cody Wilson can make a copy of the parts of a gun and then with a little reassembly . . . Voila!  A high quality gun with no serial number that the government has no idea even exists.  No hassle with age restrictions or background checks.  No worries about those silly limits on what types of guns you can buy (e.g., no fully automatic weapons).  Essentially, with 3D printers, individuals can make weapons that completely eviscerate gun control laws.

It also raises interesting products liability issues.  Let’s say someone puts the design plans on the Internet for a Glock 45mm handgun.  Then say someone “prints” the gun and assembles it.   After initially functioning properly, it explodes in the shooter’s hand.  Who faces liability?  Is Glock on the hook if it was a design flaw? Is the printer manufacturer on the hook if one of the parts failed to print properly?  Is the person who uploaded the plans liable if something was amiss?  You get the idea.

This brings us back to Cody Wilson and his “print a gun” project.  Printing guns is not a new idea.  In fact, someone has already created one “printed” gun by printing some parts and combining them with other “non-printed” parts.   Wilson, on the other hand, wants to “print” the whole gun just to prove it can be done.  But then he wants to release the gun design, which has been dubbed “the wiki weapon,” so that it can be easily shared online and recreated.

Wilson told The Daily Texan that the underlying reason for the project was to send the message: “Don’t just sit around like we have been doing for hundreds of years writing a thesis about the perfect utopia or something.  Make it.”  Leave it to a Texan to envision a utopia that involves unlimited access to guns that magically appear from a printer.

Seriously, though, with all the recent controversy around gun ownership and gun laws, it is surprising that this issue has not garnered more attention.

Monster Beverage Corp and its “Monster Energy” drinks have come under a lot of heat in recent months.  The FDA recently confirmed that it is investigating reports of five deaths and a heart attack that were possibly linked to consumption of Monster Energy.  In September, two U.S. senators sent a letter to the FDA asking it to investigate “energy drinks” and their effects on adolescents.  Now, the parents of a Maryland teenager who died after allegedly drinking two cans of Monster Energy in a 24-hour period are suing Monster.

Monster Energy is a highly caffeinated drink.  Energy drinks like it are the fastest growing segment of the soft drink market, with sales rapidly increasing over the last year.  Other brands of energy drinks include Red Bull, AMP, and Rockstar.  But Monster is clearly the market leader. Now the billion dollar question is whether Monster Energy is dangerous.  The parents of 14-year old Anais Fournier certainly believe the drinks are unreasonably so.  Their lawsuit alleges that in November of 2011 Anais went into “cardiac arrhythmia due to caffeine toxicity” after two drinking two 24-ounce cans of Monster Energy on consecutive days.  Apparently, the high caffeine level of the drink complicated an existing heart valve condition in the teen.  She was taken to the hospital but died six days later.

The lawsuit contains two main allegations.  The first is a defective design claim alleging that the drinks just contain too much caffeine.  I’m not sure this claim will fly.  The complaint alleges that two cans of Monster Energy contain 480 mg of caffeine and notes that this is the equivalent of 14 cans of Coca-Cola.  While this is true, it is somewhat misleading.  Coca-Cola is actually relatively low in caffeine in comparison to coffee or tea.  A single venti (20oz) cup of regular coffee from Starbucks contains 415mg of caffeine.  As such, I’m not sure you could say that a 24oz can of Monster Energy with 240mg of caffeine poses an unreasonable risk.

The second allegation is a failure to warn claim.  Basically, the plaintiffs claim that Monster should have known its drinks contained dangerous levels of caffeine and placed warnings on the cans.  This claim seems a little more viable at first glance.  However, the cans already contain the following warning: “Limit 3 cans per day.  Not recommended for children, pregnant women, or people sensitive to caffeine.”

It is unclear, however, whether this warning was on the cans in November of 2011 when the plaintiffs’ daughter consumed the Monster Energy.

Regardless of how this plays out, the caffeine scare may have already taken its toll on Monster.  Monster’s stock hit a high of $79 per share in June, but has recently plummeted to around $45 per share.

Having a burglar break into your home and hold you at gunpoint must be a horrific experience.  Getting shot in the face by the burglar is unimaginable.  Getting sued by the burglar after he shoots you in the face and you return fire from inside your own home?  Well, apparently, that’s just the state of the legal system.  It’s exactly what appears to have happened to one elderly California man.

Ninety year old Jay Leone was at his home in Greenbrae, California, when the plaintiff, 31-year-old Samuel Cutrufelli, allegedly broke into his home in broad daylight.  The plaintiff kicked in his door and held Mr. Leone at gunpoint while he searched for valuables throughout the home.  Unbeknownst to the plaintiff, Mr. Leone had a revolver stashed in his bathroom for personal protection.  Mr. Leone retrieved the revolver after he persuaded the plaintiff to let him use the bathroom.  When Mr. Leone emerged with the gun, the plaintiff shot him in the jaw.  Mr. Leone then fired three shots at the plaintiff, before the plaintiff grabbed the gun from him and put the gun to Mr. Leone’s head.  The plaintiff pulled the trigger, but luckily for Mr. Leone the gun was out of bullets.  The plaintiff then fled the scene.

Police later found the plaintiff in a car close to Mr. Leone’s home and arrested him.  The plaintiff now faces, among other things, an attempted murder charge in connection with the shooting.  Mr. Leone has not been charged with any criminal wrongdoing.

Well, now it is Mr. Cutrufelli who suing Mr. Leone.  Yes, you read that right.  The burglar that is facing attempted murder charges is suing the man he shot in the face.  The plaintiff claims Mr. Leone “negligently” shot him.  He is seeking damages for “great bodily injury, and other financial damage, including loss of Mr. Cutrufelli’s home, and also the dissolution of Mr. Cutrufelli’s marriage.”  Apparently, the lawsuit was filed by the plaintiff’s criminal defense attorney.

It is very doubtful that this case will make it very far.   However, if the facts presently known are all true, the mere fact that a licensed attorney filed the lawsuit in the first place is ridiculous.  To Mr. Leone’s credit, he seems to be taking the suit it in stride.  He told the Marin Independent Journal, “He’s the one who busted my door in. I’ll just countersue him then. That’s what I’ll need to do.”

In a recent article on “popcorn lung,” we here at Abnormal Use noted that such cases were typically occupational exposure cases where plant workers were exposed to the chemical diacetyl.  Solis v. BASF Corp., No. 1-11-0875. (Ill. Ct. App. Oct. 4, 2012) was one such case: Solis filed suit against BASF, a company that provided diacetyl to his employer, for injuries allegedly stemming from his occupational exposure.   He claimed that BASF failed to issue proper warnings as to the dangers of diacetyl.  In 2010, an Illinois jury awarded him $30.4 million in damages.  Recently, an Illinois appellate court reversed and remanded that verdict because of an improper jury instruction on BASF’s duty to warn (as well as failing to submit a statute of limitations issue to the jury).

By way of quick refresher, diacetyl was an ingredient in artificial butter flavoring like that found in microwave popcorn.  Inhalation of diacetyl fumes can cause a relatively rare lung disease called bronchiolitis obliterans, also known as “popcorn lung.”  Plaintiff worked at two flavoring plants from 1989 to 2006 where he worked around the chemical diacetyl.  BSAF was one of the diacetyl suppliers at the plant where Plaintiff worked from 1998 to 2006.  In 2006, Solis was diagnosed with popcorn lung, and he now claims to have just 25 percent of normal lung capacity.

Plaintiff claimed at trial that BSAF negligently failed to disclose to users of its diacetyl products the existence of a 2000 study showing the dangers of diacytel.   The trial court instructed the jury that an issue was whether “BASF Corporation was negligent in . . . in failing to disclose the results of scientific research available to it indicating that the use of diacetyl causes lung disease or risk of harm to others.” On appeal, BSAF argued, among other things, that the jury was improperly instructed as to the scope BASF’s duty to warn.  The appellate court agreed and found the trial court’s instruction to be too expansive based on the case law regarding the duty to warn.  It noted that a plaintiff must show that a defendant knew or should have known that the product was unreasonably dangerous and failed to warn the user of its dangerous propensity.  Accordingly, an instruction that BASF had a duty to warn with all information “available to it” just didn’t cut it.  The court also held that the instruction improperly failed to specify the universe of individuals BSAF was required to warn (e.g., Plaintiff vs. Plaintiff’s employer vs. the flavoring industry vs. the general public).

Interestingly, the trial court did give the proper instruction as to Plaintiff’s strict liability failure to-warn claim, in instructing that at “BASF Corporation has a duty to adequately warn and instruct the user about the dangers of its products of which it knew, or in the exercise of ordinary care, should have known, at the time the product left its control.”

I guess this is an instance where cut and paste can really be your friend.

We recently reported on the Consumer Product Safety Commission new safety ban on Bucky Balls.  Well, now, there’s a new allegedly “dangerous” toy ball on the market.  This time, it’s a product called Water Balz, marketed by DuneCraft Inc.

These brightly colored balls are about the size of a marble, but they can grow to the size of a racquetball when placed in water.

You can watch the product in action here.

What makes Water Balz so “dangerous?”  Well, much like the Bucky Balls, they don’t mix well with toddlers who treat them as food.  Two Texas parents recently found this out when their toddler ingested one of her older sister’s Water Balz.  When the toddler started having stomach problems, the parents suspected she had eaten one of the Water Balz.  Their concerns grew when they read the label, which explained that the balls expand up to 400 times if placed in water.  The parents took the girl to the hospital, but over the next 48 hours, the girl’s belly grew bigger and bigger, and her symptoms didn’t resolve.  Finally, the doctors operated.  In so doing, they cut open her intestine and discovered a bright-green Water Balz nearly an inch and a half across. Reportedly, the young toddler has fully recovered.

For now, no lawsuits have been filed over Water Balz.  We suspect that will change in the future.  Water Balz again raise the age old question for toys that cause injury.  Namely, whether the injuries are due to some inherently defective nature of the product or poor parental supervision.  I don’t think anyone would dispute that ingesting a chemical ball designed to expand in water creates a substantial risk of harm.  But the real question is, given that the product is not intended for ingestion, is it an unreasonably dangerous product?

Obviously DuneCraft’s CEO, Grant Cleveland, doesn’t believe Water Balz are unreasonably dangerous.  He told Reuters that said he was sorry to learn of the incident, but placed the blame squarely on the parents.  Said he:  “An eight-month-old has no business being near that product. Trying to turn it in to a public risk is absurd.” He also noted that the Water Balz product already carries warnings on the label and that the product is only recommended for kids over 3 years old.

I guess we’ll have to wait and see what happens.  It is not surprising, however, that some attorneys have already put out the APB for Water Balz plaintiffs.

A federal court just taught a valuable and expensive lesson to a wine connoisseur:  Unlike wine, legal claims age poorly.   In the late 1980’s, billionaire William I. Koch bought bottles of wine represented to have belonged to President Thomas Jefferson.  When he discovered that Thomas Jefferson actually had not owned the wine in question, he sued Christie’s Auction House for fraud in New York federal court.  However, the Second Circuit recently upheld the district court’s dismissal based on an expiration of the statute of limitations.  See Koch v. Christie’s Intern. PLC, — F.3d —-, NO. 11-1522-CV (2d Cir. October 04, 2012).

Koch’s argued  that Christie’s promoted as authentic a cache of wine that was supposedly bottled in the late 1700’s and linked to Thomas Jefferson.   Koch alleged that these “Jefferson wines” were, in fact, counterfeit, and that Christie’s knew or recklessly did not know of the wines’ dubious nature.  Koch purchased four bottles of the now discredited Jefferson wines from third-party dealers in November and December 1988, allegedly relying on promotional representations made by Christie’s.  In 2010, he brought suit on the issue alleging fraud and racketeering by Christie’s.

In 2011, a district court judge dismissed the case, finding Koch had missed the statute of limitations on the racketeering claim.  The heart of the issue was the operation and scope of “inquiry notice.”  Attorneys for Christie’s argued that news coverage of the Jefferson wine issue should have put Koch on notice at least ten years prior to his filing suit.  Koch argued that inquiry notice doesn’t trigger the running of the statute of limitations.  Instead, he said the statute doesn’t begin to run until a plaintiff has knowledge of a defendant’s scienter, as well as the alleged injury.

The Second Circuit agreed with the district court, holding that the statute of limitations began to run when there were “storm warnings” that should have prompted Koch to inquire into as to whether he has been injured.   It noted that the “storm warnings” need not spell out every aspect of the alleged fraudulent scheme.   The “warnings” will be sufficient to start the running of the statute of limitations when they would suggest to an investor of ordinary intelligence that he has probably been defrauded. Perhaps the District Court Judge, John Koeltl, put it best: “For wine, timing is critical, the same is true of causes of action.”

As we posted last week, there’s a new “popcorn lung” case on the block.  Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case.  While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment.  Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring.  This new case involves a Plaintiff who just REALLY liked popcorn.  He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis.  One purported cause of bronchiolitis obliterans is the chemical diacetyl.  Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn.  The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day.  At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung?  By eating popcorn.   A LOT OF POPCORN.  This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years.  He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans.  While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million).  The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.  A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages.  They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?

Beef Products Inc. (BPI) was featured in ABC News reports a number of times this spring.  As you might guess from the title of this article, the news reports were not favorable.   The reports concerned possible health and nutrition issues with BPI’s “lean finely textured beef.”  ABC News even went so far as to refer to it as “pink slime.”  In response, BPI has filed a defamation lawsuit against ABC News, Inc., among others, seeking $1.2 billion in damages over the allegedly false and malicious coverage.

BPI’s “lean finely textured beef” is produced in a process by which bits of beef are heated and treated with a small amount of ammonia to kill bacteria and then compressed together for use in ground beef products.  Yummy!  Apparently, this practice meets federal food safety standards, and the product can properly be referred to as beef.   It does not appear that the USDA has ever declared the product to be unsafe.  Of course, that really only means that the product probably won’t make you sick.  It doesn’t necessarily mean that the product is nutritious.

According to the lawsuit, ABC News ran 11 television segments and 14 online news stories in March and early April of 2012 as part of a “month-long vicious, concerted disinformation campaign against BPI.”   BPI’s attorney claims that the reporting was designed to mislead consumers to believe that BPI’s “lean finely textured beef” was unhealthy and unsafe.  BPI has allegedly had to close three of its four plants and lay off 700 workers.  However, ABC was certainly not the first entity to refer to BPI’s finely textured beef as “pink slime.”  A Department of Agriculture microbiologist (also named in the suit) apparently coined that term a few years ago.

Unfortunately for BPI, defamation claims are notoriously hard to prove.   Not only will BPI have to prove that the information was false, but it must also prove that the ABC News knew that information was false and chose to ran it anyway.  Proving ordinary negligence by a news outlet just won’t cut.  Luckily for the media, they can be negligent until the cows come home (pun intended) with little or no repercussions.  In fairness to ABC News, I took a look at several of the stories archived on the ABC News website and nothing in them appeared to give BPI much of case (see e.g., story number 1).

Regardless of the merits of this particular lawsuit, it does go to show the power of the media.  It makes you wonder whether the law should allow a news outlet to be held accountable if it negligently runs a series of false stories that essentially put a company out of business and 700 employees out of work.  Discuss among yourselves.