What’s an ear infection, ringing of the ears, and tightness of the neck/back worth?  According to a California woman, it’s worth $1.7 billion.  Yes, you read that right!  That’s billion with a “b,” not million with an “m.”  And the culprit that has caused such grievous injury?  None other than the city’s newly installed “smart” parking meters.

The City of Santa Monica, California recently installed smart parking meters that allow drivers to use smartphones and credit cards to purchase metered time.  The parking meter slots have sensors that will reset a meter when a parking space is vacated.  A local woman named Denise Barton recently filed a lawsuit seeking a mere $1.7 billion plus $1.7 million per month thereafter in damages because the wireless signals emitted from the meters are making her sick.  Apparently, shortly after the parking meters were installed, she developed an ear infection which required antibiotics to treat.  She must have one hell of a doctor, because he was able narrow the cause down to the city’s new parking meters.

The City of Santa Monica claims the wireless emission is at a very low level and extends only up to eight feet from the meter.  Assistant Finance Director Don Patterson told the Santa Monica Daily Press, “The Wi-Fi is very low level and only communicates between the meter and the sensor, about 5 to 8 feet… It’s the same as someone using a cell phone walking on the sidewalk.”  According to the city, the meters comply with all necessary regulations related to wireless communication.

There have been no other complaints over health issues caused by the meters, except those of Barton.  Although the dangers of wireless radiation have been widely disputed, the studies usually focus on holding a cell phone to your head for long periods of time.  The studies don’t access the dangers of walking past someone sending a text message.  Then again, we’re sure Barton’s attorneys have some great new studies because we all know an attorney would never file a frivolous claim.  However, if that’s the case, why on earth isn’t she suing the cell phone carriers for her health issues?  Perhaps those mammoth companies don’t have deep enough pockets for her $1.7 billion claims?

The iPhone 5 is set to be released soon, and as per usual, it appears that it will be another in the long lines of wins for Apple.   It will arrive in stores just as Apple wraps up a lawsuit over broken iPhone 4s.  A federal judge in San Jose, California, recently threw out a class action lawsuit from iPhone 4 owners who claimed that Apple misrepresented the strength of the phone’s glass screen. The case is Williamson v. Apple, Inc., No. 5:11-CV-00377 (N.D. Cal. Sept. 4, 2012).

In the lawsuit, the complaint alleged that Apple’s claims that its phone’s  glass screen was “20 times stiffer and 30 times harder than plastic” were misleading, citing a study that the glass on the iPhone 4 breaks at a rate 82 percent higher than previous iPhones.  District Court Judge Edward Davila disagreed.  In his order dismissing the case, he stated that “it is a well known fact of life that glass can break under impact” and ruled that Apple did not breach a warranty or violate consumer protection laws.

I’ll admit that I have noticed a large number of of people walking around with cracked iPhone screens lately.  Are the screens really up to snuff as described in Apple’s marketing materials?  I could certainly see an argument that the ads might lead you to believe that the odds of breaking the glass are very low.  Especially when the materials appear to tout the glass screens as stronger than plastic screens, which rarely shatter.  However, the judge based his decision on the fact that Apple never stated that the iPhone 4 was “resistant to normal wear and tear, that the glass housing would never break or crack under normal use, or that the phone might not be damaged if it was dropped.”

So, it appears all of you iPhone 4 users rolling around with cracked screens aren’t going to hit the jackpot this time.  It might just be time to just pony up for that shiny new iPhone 5 with a fresh screen. Good luck.

Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons?  According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.”  Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.

The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss.  One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice.  I believe that the primary responsibility at this point rests with Cinemark.”  Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.

It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark.  I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.

I feel a lot of compassion for the victims and the families of the victims of this heinous crime.  I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer.  However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer.   Of course, a theater owes a duty to its patrons to keep them safe within reason.   But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon.   Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon?  As recent events have show, even the military struggles to protect their own under similar circumstances.

If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons.  It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening.  This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums.  These costs will undoubtedly be passed on to the consumer.

Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function.  Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.

A Wisconsin man went hunting last fall hoping to take out Bambi’s mom but instead his thumb became the only casualty of the outing.  Let’s talk specific. In November, Cyril Korte found himself deer hunting with a TenPoint Phantom crossbow he purchased at a Cabela’s Retail Store in 2009.  Unfortunately for Mr. Kote, as he fired the crossbow, he stuck his thumb in the path of the bow string, which is a major no-no.  In so doing, he severed part of his thumb; making matters worse, the missing piece could not be reattached.  Mr. Kote has, of course, filed a lawsuit against Hunter’s Manufacturing Company (d/b/a TenPoint) and Cabela’s Retail.

I’m not particularly familiar with the operation of crossbows, but it would seem to me that keeping your digits out of the path of the bow string is common sense.  I found the 2009 owners manual for the TenPoint Phantom crossbows.  Sure enough, it states, quite clearly:  “Never allow your fore-grip hand’s fingers or thumb to move above the barrel’s flight deck or into the bow string or cables’ release path.  If you do, you will injury yourself severely when you fire your crossbow.”

Plaintiff has made a few interesting claims in his suit.  First, the complaint states that TenPoint should have know of the crossbow’s dangerous propensities and that “injuries to users’ fingers or thumb are the most common injuries associated with the use of Tenpoint’s crossbows and TenPoint was at all relevant times aware of this fact.”   For any product, there is always going to be a “most common” injury regardless of whether it is defectively designed.  The real question is, of course, whether the foreseeable injury could have been reduced or avoided by a reasonable alternative design.  To that end, Plaintiff”s real claim is that the crossbow should have some sort of grip guard to keep people from sticking their thumbs into the path of the bow string.

The second interesting allegation Plaintiff made in his lawsuit is that he relied on expertise of the Cabela’s staff in selecting the crossbow and he was apparently he was told that the TenPoint Phantom was the “best and safest” crossbow on the market.  So what? Was this some sort of express warranty that Plaintiff couldn’t severe his thumb if he didn’t use the cross bow properly?  The “best and safest” of anything, especially weapons, will typically still cause injuries if used improperly.  What if a person goes out and buys the “best and safest” car based on the car salesman’s recommendation, then later proceeds to slam on the gas peddle with his friend standing in front of the car?  Of course an injury will occur, even though the car may have, in fact, been the best and safest car on the market.  The real question is here is whether other crossbows sold in 2009 had a grip guard that could have prevented the injury.

In the end, this case just seems like another classic example of “if there is a way to get injured there is someone out there who will find it.”  That someone will inevitably file a lawsuit thereafter.

Carnival Corporation, and its subsidiary, Costa Cruises, face an onslaught of litigation relating to the January 2012 accident in which a Costa Concordia Cruse Ship ran aground and capsized.  Shocking, right?   The most recent lawsuit filed in Florida state court alleges, among other things, a products liability claim alleging the ship’s hull and power systems were defectively designed.

I’ve always looked at those mammoth cruise ships that resemble high-rise condos stuck on a barge and thought they were an accident waiting to happen.  But, then again, I know nothing about ships.

Based on a press release from the Plaintiffs’ attorneys, it appears that they will float (pun intended) the theory that the Concordia depended on stabilizers to keep it from rolling over in an emergency situation, but those stabilizers were of no help when the ship lost power.   Ergo: defective design.  The release states that Carnival was aware of problems when in February 2010 the hull of Carnival’s Costa Europa was punctured against a dock which created a small hole 6 foot that caused to ship flood and list.  It further states that in November 2010,  the Carnival Splendors ship was stranded off the coast of Mexico due to a catastrophic failure of a generator in one of the engine rooms as well as the failure of a backup generator.

The blogosphere is already analyzing the liability claims in this matter. Again, I’m no seaman, but a purported naval architect and the author of The Old Salt blog finds such a theory is way off base.   He notes that, in spite of their name, stabilizers on cruise ships have almost nothing to do with the stability of the ship.  He believes that ultimately the design did not cause the Concordia to capsize.  Apparently, “[a]ny ship suspended on rocky ledges at the bow and stern with the midships no longer supported by the buoyancy of the water, will roll one way or another.”  Who would have thought that hitting a huge rock, as opposed to a defective design, could have been the cause of the collision?

Napalm is a gel-like incendiary agent that has been used in warfare weapons for decades.  What makes napalm different from any other firebomb type incendiary agent such as gasoline?   The gel clings to what ever it touches, creating a large burning area around the target, thereby decreasing the need for accuracy.  Doesn’t this sound like a perfectly safe type of fuel to use in adding ambience to your backyard?  Well, it wasn’t napalm, but an Alabama man has sued, alleging he suffered severe burns when his girlfriend poured gel fuel into a fire pot which ignited and hit his neck, chest, and face.

In his lawsuit, the plaintiff claims the fuel gel and fuel pot were defective, unreasonably dangerous, and carried “an extremely high risk of combustion” with potential for serious injury.  According to the complaint, in May of 2011, the plaintiff was using a fire pot “as instructed” along with several family members and his girlfriend.  When his girlfriend saw the flame had been extinguished, she added more fuel gel, which caused a “flash fire explosion” that “bathed” the plaintiff with the fiery substance.  His family attempted to douse the flames with water, but the plaintiff still suffered severe burns and had to be airlifted to the University of Alabama Birmingham burn center.

In September of 2011, the U.S. Consumer Product Safety Commission announced a voluntary recall of gel fuels by several manufacturers, including Bird Brain, Inc., which was named in this lawsuit.  The real problem with the gel fuels is not that it can combust when poured onto a lit flame.  That could happen with any incendiary agent.  Instead, the problem lies in the fact that the flame can be difficult to see and vapors from inside the gel container can be ignited by the flame. This can, in turn, cause an explosion, and the effects are compounded by the fact that the burning gel sticks to the skin and can be difficult to extinguish with water.

Frankly, this suit may not bode well for the defendants.  Then again, it’s certainly early in the game, and we’ve only got one side of the story.  If this one goes to trial, we’d expect there will be a bit quibbling over whether the term “napalm like substance” is objectionable and whether this video from the Consumer Product Safety Commission is admissible.

A basic principle of products liability law is that liability follows the product in the chain of distribution. In other words, if the manufacturer did not make the product, it cannot be held liable.  But precedent and legal principles be damned, plaintiffs’ attorneys have been pushing a new theory of  liability called “innovator liability.” Under this theory, brand-name drug manufacturers (the “innovators”) may be liable for injuries to plaintiffs who only ingested generic versions of their drugs.  In other words, it requires brand-name manufacturers to answer for injuries allegedly caused by drugs they did not manufacture.  Sounds a bit ridiculous, right?  Fortunately, a New Jersey court recently said “no dice” to innovator liability in the case of Coundouris v. Wyeth, et al., No. ATL-L-1940-10, 2012 WL 2401776 (N.J. Super. Jun. 26, 2012) [PDF].

The plaintiffs  alleged that the brand-name defendants were liable for injuries caused by generic versions Reglan/metoclopramide.   Specifically, they alleged that that the defendants owed a duty to exercise reasonable care to adequately warn doctors and users about the risks of metoclopramide.  The defendants argued that under the New Jersey Products Liability Act (“PLA”), brand-name drug manufacturers could not be held liable for injuries allegedly caused by the use of a generic drug manufactured by another company. The plaintiffs asserted that their claims were not governed by the PLA and were instead negligence claims governed by common law.

The court concluded that the PLA governed the plaintiffs’ claims, noting that the focus of plaintiffs’ claims was the defendants’ failure to warn about metoclopramide’s dangers and that the state legislature’s intent was for such claims to fall under the PLA.  The court further noted that it is well-established that product identification (proof that the product that allegedly harmed the plaintiff is actually the defendant’s product) is an essential element of a plaintiff’s prima facie product liability action.  As such, the court held that the plaintiffs’ claims must fail under the PLA to the extent that the plaintiffs never ingested products sold or manufactured by the brand-name manufacturers.

The court’s  decision seems based on sound legal precedent and is in line with the decisions of other states that have evaluated the viability of innovator liability.  In case you’re counting home, so far California is the only state to adopt the theory of innovator liability.  It did so in the case Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008).  We’re every bit as shocked as you are that California would be on the outside looking on any legal issue (insert sarcasm here).

(Hat tip to John J. Sullivan at the Drug and Device Law blog).

There’s certainly nothing out of the ordinary about a contaminated food lawsuit.  Unless the food in question is dog food.  That’s exactly what went down May 25 when a New Jersey father filed suit against Diamond Pet Foods in federal court claiming his two month old infant was sickened by salmonella-contaminated dog food.  This lawsuit comes on the heels of Diamond’s May 5 pet food recall due to salmonella contamination. The lawsuit alleges that the dog food, manufactured by Diamond, infected the infant with a rare strain of salmonella infantis.  That’s the same  strain identified in another outbreak allegedly caused by Diamond’s contaminated pet food.  That instance is claimed to have sickened 15 people in 9 states.

One key question left unaddressed by the complaint is how the child was exposed to the allegedly contaminated dog food.  We can safely assume, since the child was only two months old, that he did not ingest the food on his own.  It would appear that the most likely culprit was a parent failing to wash his or her hands after handling the dog food.  As Diamond’s recall notice says, people can become infected with salmonella by handling contaminated food “especially if they have not thoroughly washed their hands after having contact with surfaces exposed to this product.”

Another key issue in this case is whether the Diamond pet food purchased by the plaintiff was even contaminated with salmonella.  Samples of the dog food purchased by the family were sent to a Monmouth County laboratory for analysis but did not test positive for salmonella.  The plaintiffs’ attorney has suggested that the contamination could have come from an earlier batch of Diamond dog food purchased by the plaintiffs.  However, the plaintiffs were supposedly buying Diamond’s dog food for months and neither of their two dogs became ill.

It should be interesting to see if the plaintiffs are able to convince a jury that there is causal connection between the illness and the dog food.  Either way, you know a pet food company is having a rough go of things when they are getting sued for making a human sick.

We here at Abnormal Use normally wouldn’t waste time on someone frivolous and unserious like Gloria Allred.  Okay, who are we kidding?  We love it when people say or do dumb things.  And this week Gloria Allred gave us a real gem when she remarked: “cannibalism is a serious issue and is very dangerous to the health and well-being of the cannibal and victim.”  Seriously, those words came out of the mouth of a licensed attorney.

Yovonka Bryant, the self professed girlfriend of the man killed by police as he gnawed off a homeless person’s face, stepped forward last week to speak out against what her attorney called a growing scourge: cannibalism.  Her attorney is, of course, none other than “celebrity” lawyer Allred.  At a bizarre Miami news conference, Ms. Allred stated, “Yovonka and I are very concerned about the issue of cannibalism and the number of cases that are being reported . . .”  She added, “It is very important that the social taboo and stigma that have long been attached to this subject continues and that society condemns cannibalism, rather that trivializing it or glamorizing it.”

We think Ms. Allred has hit a new low, which is quite an accomplishment given her past body of work.  Of course, arguably, this is just par for the course for her, and she certainly seems to think so.  When questioned at the press conference as to why Ms. Bryant would need an attorney or press conference to discuss such a ridiculous topic, Ms. Allred stated, “[t]his is a high-profile case . . . . I make no apologies for being here to support [Ms. Bryant].”

Where would the world be without such legal scholars?  I wonder if she had to do any Westlaw research to verify that cannibalism was, in fact, dangerous.  Perhaps she consulted with medical experts.  Either way, we appreciate her legal scholarship and diligence in bringing this matter to our attention.  In fact, just this afternoon, the wife and I were debating between gnawing someone’s face off for dinner or heading to Trader Joe’s to grab some sushi.

Thank goodness for Ms. Allred’s PSA.

(Hat tip: Overlawyered).

A federal judge in California has refused to dismiss a lawsuit claiming that General Mills, Inc. was misleading consumers about the healthiness and fruit content of its ‘Fruit Roll-Ups’ and ‘Fruit by the Foot’ product lines. A California woman, Annie Lam, sued the on grounds that a “reasonable consumer” might be confused by the products’ actual fruit content.

Lam alleged that the marketing claim “made with real fruit” incorrectly described the fruit snacks’ true ingredients.  She is, of course, wrong, because the products do actually contain real fruit.  A quick flip to the back of the product reveals that it contains “pears from concentrate.”  It may not be the fruit she wants, but technically, it is “real fruit.”  We here at Abnormal Use understand the vexing frustration of having to flip a box over and read the ingredient list, but give us a break on the federal court litigation, okay?

Judge Samuel Conti, however, clearly disagrees with us.  In his decision, he held that the packaging statements “might lead a reasonable consumer to believe that [the] product is made with real strawberries, not pears from concentrate.  The names ‘Fruit Roll-Ups’ and ‘Fruit by the Foot,’ along with the fanciful depiction of these products, which resemble fruit leather, may lead to further confusion about the Fruit Snacks’ ingredients.”

The suit, which now seeks class-action status, was filed with the aid of the watchdog group Center for Science in the Public Interest.  Although there may be a time and place for pursuing companies that are trying to pull a fast one on the general public, we must be honest and say that we don’t feel much sympathy when there’s a plainly visible nutrition and ingredient label on the side of the package.  In fact, those labels are required to be by law.   Furthermore, let’s be real here . . . who in their right minds believes that Fruit Roll-Up is healthy (or, at least, as healthy as “real fruit”)?