This past weekend was awful. Things started out innocently enough on Friday night. Several of my friends were heading out to celebrate a birthday, and we started out the evening’s festivities with dinner at a restaurant in downtown Greenville. Without naming the restaurant, suffice to say, the main menu item is chicken. I had my usual order of chicken strips smothered in BBQ sauce. We finished dinner, went out on the town, and had a great time. There was no reason to suspect that trouble was brewing. But it was. And it wasn’t just brewing, it was incubating.

I woke up Saturday morning with a sneaking suspicion that something was awry. I couldn’t quite put my finger on it, but I felt that something was amiss. It’s never good when you wake up in the morning and believe that right then, at that moment, that is the best you are going to feel all day long. It’s even worse when your intuition is right. After being awake for 15 minutes, my body informed me that I had brought something home from dinner with me: a friendly little bacteria called salmonella. I’m not going to lie. The next 12 hours were awful. I had chills; I had sweats; I had all the other unpleasant accoutrements of food poisoning.

Now, I feel compelled to say that my stomach is usually not so sensitive to food. I have punished my body with God-awful foods much more often that I should. I have eaten meat straight off a whole cow roasted over an open flame. I have drunk water straight out of mountain streams and lakes. Once, when I was Nicaragua, I stopped at a roadside shack to get an afternoon snack that consisted of a tortilla marinated in unrefrigerated cream. None of these caused any gastro-intestinal distress whatsoever, let alone the distress that I suffered through on Saturday.

How bad was it, you ask? Let me tell you. Before being poisoned by my chicken dinner, my Saturday plan involved taking my girl up to Hendersonville to go apple picking on what turned out to be a gorgeous September day. After that, I planned on watching college football in the afternoon, and then heading to a buddy’s house to play poker and watch the UFC fight. After being poisoned by my chicken dinner, though, my Saturday plan involved laying on my couch praying that I would avoid severe dehydration. Thankfully, I had an excellent nurse to take care of me. And I thought it was only fair that she should have control of the TV. So instead of watching football in the afternoon, we watched “The Golden Girls,” “Project Runway,” and “Teen Dads.” And instead of poker and UFC in the evening, we watched Jane Eyre. Here’s the thing: I was in so much pain I didn’t care. We could have watched “Disney Princesses on Ice” (and probably would have had that been on) and I would have been just as agreeable. My only limitation was that I could not watch any food commercial. It was too much for my stomach to bear.

Now that I’m on the road to recovery, I have spent the last few hours searching for the silver lining to this big, disgusting, dark cloud. It took some looking, but I think I found it. Abnormal Use is a products liability blog. When we think about products liability issues, we tend to think of multi-million dollar cases involving complex, sophisticated machinery. But the world of products liability is much broader than that. In fact, the one product that everyone uses every day and which we probably don’t think about as forming the basis of a products liability claim is the very food we eat. This is probably due to the fact that you never really hear about food-based products liability lawsuits. One reason is a proof issue. In my case, how do I know that my chicken dinner on Friday night caused my food poisoning and not something else I ate, or some other pathogen altogether? Apart from the fact that seeing an ad for chicken sandwiches causes my stomach to turn, I really have no evidence. Another reason for the seeming rarity of food-based products cases is damages. What are my damages? Obviously, the price of the dinner would be compensable; and let’s not forget my pain and suffering. But beyond that, quantifying an amount of damages would be very difficult (apart from the rare case of food poisoning that causes emergency room treatment). And so, between difficulties with proof and damages, bringing a case of this type becomes economically unreasonable.

Regardless, though they may not get as much attention as the types of claims we normally write about, food-based claims are just as much product liability issues as anything else that appears on Abnormal Use. And unless you’re growing and preparing your own food, at one time or another, we have all most likely been potential plaintiffs in food-based product liability claims.

Vice Squad here. A lot of folks have been asking what the requirements are to join the Squad. There’s one: You’ve got to be willing to get your hands dirty. And if you want to be the Bureau Chief like yours truly, you’ve got to be willing to get your hands real dirty. Even if it means causing collateral damage to the ones you love.

Which leads me to this past Friday night. Just as quittin’ time rolled around, the Editor-in-Chief of Abnormal Use — Jim Dedman — called. I swore under my breath. This was not going to be good.

“Buck, it’s Dedman. I need Vice Squad on assignment. Tonight.”

“I’ll bet you do, Dedman.”

“Listen, playboy,” he says. “I don’t want any attitude from you. This is on a short fuse, and so am I.”

I chuckle at his melodrama. “I’m listening.”

“I need you for a special assignment. I need you to go to the fair — the Upper South Carolina State Fair.”

“Yeah, I’m familiar with the fair, Jim. But I’ve got better things to do. Why don’t you send your sister’s kids or something?”

“Not a chance, Buckingham. First of all, I love my sister’s kids. Second, I need professional boots on the ground. Unfortunately, you’re all I’ve got.”

“If it’s so important, why don’t you go?”

“Buckingham, don’t test me! You know I’m afraid of clowns! Besides, I’ve got a wine-tasting at The Commerce Club in half an hour. You’re going.”

“I’d love to, Jim. I really would. But I’ve already got plans with my girlfriend. Maybe next year.” I felt good about this response. The girlfriend card usually worked.

“That’s just it, Buck. She’s going with you.”

“Ohhhh no,” I protested. “Catie’s a good girl. She’s got an innocent heart. She can’t handle this. She’s from Massachusetts! She’ll never be able to handle a Southern fair.”

“She’s got to grow up sooner or later. Turns out tonight’s the night.” My blood was boiling. “You probably want to get there around 7. Oh, and Buck?”

“What’s that, Jim?”

“Be careful out there, Buck,” Dedman laughed as he hung up the phone.

God, I hate him.

I headed back home to break the news to Catie. At first she thought I was kidding. But as I explained this wasn’t a joke, Catie broke down in tears. “Please don’t make me do this,” she pleaded. “I’m sorry, honey. Dedman says we have to go.” Her tears were pouring now. “God, I hate him!” she cried. I know, baby. I do, too.

I do, too.

We got to the fair around 7 pm. Catie and I immediately made our first pass through the attractions. It smelled like funnel cake and cow manure. I was instantly taken back to my days as a young man growing up in East Tennessee going to the Appalachian Fair. Back in those days, I would look forward to August with eager anxiety. Not for the beginning of school. But for the arrival of the fair. I could not be kept off the Pirate Ship, the Gravitron, the Tea Cups, or whatever new ride had been set up for the sole and express purpose of making me sick. I couldn’t get enough. And neither could the tens of thousands of people who showed up from the “metropolitan” area. I use the word metropolitan in quotation marks because there is very little metropolitan in the Upper East Tennessee / Southwest Virginia / Western North Carolina area. The only more inappropriate word choice for my homeland would be cosmopolitan. But I digress.

So I used to ride the rides with reckless abandon. It was not possible for me to care less about who was operating these rides, or more importantly, who was assembling them. Had they received training in proper operation and safety procedures? Who was responsible for inspecting the rides? Was this a drug-free work environment? It didn’t matter. The only questions I cared about were: (1) how long was the line; and (2) did I have enough tickets. Beyond that, the only training I required of my ride operators was the taking of tickets.

Flash forward to Friday night. There I stood in the middle of the thoroughfare grappling with the more safety-conscious questions I never bothered to ask in my youth. I decided very quickly that it would take a lot of money—a lot—for me to get back on those rides today. In fairness, it probably wouldn’t take that much money for me to get on the Pirate Ship. It was probably more dangerous for me to be standing on the ground looking at it than to actually ride. By contrast, if you want me to ride the county-fair knock-off version of the Tower of Terror, you had better bring your check book and a deed.

After 30 glorious minutes of carousing at the fair, we decided we’d had enough of that and headed over to the demolition derby. I know what you’re thinking, ladies. Yes, I am that classy. And no, I am taken.

The derby was everything I had hoped it would be, and more. Ten cars entered the event—bearing names like Widowmaker, Doom, Kat Dog, Family Tradition, Trailer Park Bandit, and (crowd favorite) Christine. One car made it out. Let me take this to Serious-Town for a minute: Winning a demolition derby is an impressive feat. Whether you believe it or not, there is strategy. The best drivers will charge at their opponents in reverse. That way, the charging drivers can cause damage to the engine blocks or frames of their opponents without risking damage to their own. Consequently, some of the best cars in the derby are ones with long frames and low profiles. This is almost certainly something that Cadillac designers in the 70s didn’t think about when they made a car with lots of trunk space, but now, in 2011, it’s an extremely useful feature.

More than winning, though, the most impressive feat from Friday night was avoiding arrest. Yes, arrest. It seems there was an altercation during the demolition derby. For an event where motor vehicle collisions are encouraged, it is almost inconceivable that a collision during the race could cause a fight. But cause a fight it did. I’m not entirely sure what happened, and not surprisingly, eyewitness accounts vary. But after the first round, the driver of “Doom” got out of his vehicle and sat in his window Bo Duke style pointing back at one of the other drivers. I immediately rose to my feet. Catie turned to ask what was going on. Oh, dear, sweet, innocent Catie. If you knew anything about racing, you would know that when a driver gets out of his vehicle during a race, there is going to be a fight. It’s a law as universal as gravity. This law is true whether we’re talking about NASCAR, indy car, go cart, or Mario kart. It’s especially true when there’s pointing involved.

Friday night was no different. The driver who got pointed at eased himself out of his car and extended his arms in a “You want a piece of me?” gesture. Turns out, the pointing driver did want a piece of the other guy and went charging at him across the arena.

Now here’s a practice pointer for any would-be race participants out there. If you are ever driving your car and you find yourself in a situation where you have asked another driver if they want a piece of you, and the other driver indicates that he does, do yourself a favor: Do Not Remove Your Helmet. I have no idea whether racing helmets are designed to withstand crushing fist blows from opponents. But I have a sneaking suspicion that racing helmets are better designed for absorbing such blows than, say, the human face.

This information would have been helpful for the guy who asked if anyone wanted a piece of him. Like a gentleman, he removed his helmet before the fight. He then promptly received a swinging punch to the left jaw, which he took like a gentleman—a gentleman that had just been shamed with a fist in front of a live studio audience. The 2,000 or so in attendance collectively groaned “Ooohhh,” affirming the everyone’s belief that the punch did, in fact, look like it hurt. Then the crowd erupted in cheers.

Somewhere in this mess, the pit crews charged into the arena. This is never a good sign, yet simultaneously, always a great sign. More punches were thrown. Then the cops ran in. Again, the crowd went wild. South Carolina’s finest subdued one of the punch-throwers by twisting his arm up his back. It is at this point that I witnessed one of the greatest acts of bravery / loyalty / stupidity I have ever had the privilege of seeing. One of the pit crew (I think) charged at the guy who had been subdued by the cops and delivered a punishing uppercut—while the cops were holding his victim back. I wanted to scream “Finish Him!” and start typing in a code for a fatality but couldn’t find a gaming controller anywhere. Fortunately, the cops read my mind, grabbed that guy, and before anyone knew it had him cuffed and stuffed, ready for intake.

After that, the race was pretty mundane. Sure, there was a crash that nearly took down a light pole. And there was an oil fire. But you know, no big deal.

After the race, I looked at Catie and asked, “Well, what did you think of your first Southern fair?” Her response was two words: “I’m horrified.” Fair enough.

Vice Squad out.

Dateline: 12:36 pm, CST, Saturday, September 3, 2011, Pensacola, Florida

Vice Squad here, on location from Florida’s panhandle. I’m on assignment this weekend with a bachelor party for an old friend, conducting field research into the depraved and licentious behavior of young American men bound for holy matrimony. This has required me to go undercover, to blend in with my subjects, to become one of them. Do I do this willingly? Of course not. I do it all in the interests of academic integrity and for the benefit of you, my dear reader. Mostly.

To be certain, I am exposing myself to a certain amount of danger in submitting this field report. As I write, I am sitting outside under the swirling clouds of Tropical Depression Lee. It is gently spitting rain and generally punishing this part of the world with a force equivalent to the cooing of a newborn baby. This weather event, touted as causing a current state of emergency, has prompted local residents to look to the sky and casually proclaim, “Meh.”

The greater danger comes from the circumstances surrounding the preparation of this very post. I’m among five of my closest friends. For a bachelor party. At a beachfront Florida town. On Labor Day weekend. On the first college football Saturday of the season. I’m sure you can imagine how popular I am right now, as I sit here preparing this post. I would love to share with you the things that are being said about me. But I can’t, not unless they’re heavily edited, and even then, I don’t think they’d make grammatical sense. So trust me, I’m enduring a significant amount of personal ridicule to file this field report.

Oh, look. The first round of kickoffs just happened.

The trip so far has been filled with observations about the products we depend on in our daily lives. I’ve highlighted five of those observations for your consideration.

1. Google Maps. We’re staying at my buddy Matt’s house in Pensacola. I’ve never previously been to this city, and frankly, had no idea how to get here or how much time it would take. These problems were quickly solved courtesy of the Google machine. Almost instantaneously, we had alternate routes available and estimated times of arrival. For the most direct route, 7.7 hours from Abnormal Use headquarters in Greenville, South Carolina. No sooner had we gotten this information from Google, something funny happened. We turned on Google. In the blink of an eye, the information provided by Google became an enemy. It was questioning our manhood. “Google says it will take almost 8 hours. That’s [redacted]. I bet we can get there in six and a half. Probably six.” The entire car agreed without hesitation. Literally one minute earlier, none of us had any idea where we were going. One minute later, after Google had shown us the way, we had unanimously voted that Google didn’t know what it was talking about. In fact, we saw Google as challenging us. The machine was daring us to beat its time. Challenge accepted, Google. We left Greenville at 5:45 pm.

We pulled into my pal’s Pensacola driveway at 12:30 am–6.7 hours after departure. Unfortunately, Pensacola is a time zone behind Greenville. It was 1:30 back home. We had been on the road for exactly 7.7 hours. Touche, Google.

2. Chick-fil-A. We decided to stop for dinner on the far side of Atlanta, and we decided there was no better place to recharge our batteries than the Original Chick-fil-A location. The original restaurant is in the Atlanta suburb of Hapeville, which backs up to the far side of the Atlanta airport. If you’ve never been here, you need to go. It’s everything you love about Chick-Fil-A, multiplied by everything you love about Waffle House. There’s table service, a full menu of side items like sweet potato souffle and mac and cheese, and it’s open 24 hours. This raises two important points. First, when I say “full menu,” I mean full menu. Specifically, they serve beef. At a Chick-fil-A. Riddle me that. The second point is even more staggering: it’s open 24 hours. Everyone knows that Chick-fil-A is closed on Sundays. And we have found ourselves on more than a few Sunday mornings wishing that our Creator would make a special exception just one time so we could get a chicken biscuit. Our prayers have gone wholly unanswered. This blew our minds, so we asked our resident Chick-fil-A expert and waitress Tammy how this works. Apparently, the original is open until 4 am on Sunday mornings (almost certainly a prime business time) and then closes until Monday morning. However, Tammy has assured us that she is putting a proposal together to see that the original will also close promptly at midnight. We’re fine with this and we support her efforts. After all, if not everyone can get Chick-fil-A on Sunday, then no one shall get Chick-fil-A on Sunday.

3. Automatic Vehicle Collision Detectors. We took my car to Florida. My car does not have an automatic vehicle collision detector, but I had the next worst thing: my buddy Nick. Somewhere on a quiet stretch of I-65, Nick saw a car on my rear quarter (the only other car around for miles, mind you) start to merge into me. Rather than inform me in a clear, cohesive manner that we were about to be involved in a mass fatality situation, Nick releases an incomprehensible cry that can only be described as the mating call of a yeti. It had been dead quiet in my car before, making his cry that much more alarming. I nearly wrecked from the shock value alone. The merging car moved back in its lane before anything more serious happened. Nick collected himself and explained that the car, at its closest point, was a mere inch away from us. Reports from other parts of the vehicle indicated that while we had a close call, it was nowhere near as close as Nick’s freaking out suggested. Certainly, if we were in danger, a collision detector would be useful, and the risk makes me wish I had the capability in my vehicle. But the fact of the matter is that even if I had a collision detector, Nick’s caterwauling would have drowned it out. Maybe a better feature would have been a cone of silence around his seat. This would have been useful for most of the trip.

4. Cigars. I love a good cigar, especially when I’m driving. There are certain risks involved, though, that are not for the untrained aficianado. First, you’ve got to be careful of where you ash. Hot ash in the lap is not pleasant, not as bad as a boiling hot cup of coffee, sure, but still, not good. Second, you’ve got to be careful about checking your blind spot with a stogie in your mouth, unless you just really like a trail of hot ash streaked across your window. Finally, in particular regard to stick shifts, if you’re pushing into third or fifth while holding your cigar, you’re likely to end up with ash in your cd player. Not that I know first hand about any of these problems . . . .  Moving right along.

5. Matt’s TV. Let me begin by saying that I am grateful for Matt opening up his home to us. However, Matt’s TV is a problem. To be fair, it is a large, flat screen manufactured by a reputable company (which shall remain nameless). And it’s designed for 1080p HD picture quality. Unfortunately, Matt is in a service area that can’t deliver that picture quality, so everything you watch ends up looking like a Tim Burton movie–animated computer graphics. The limited amount of football I’ve been able to watch while writing this post looks like Madden ’12. I say all this for 2 reasons. First, technology is great if there’s the ability to use it. There’s no point in having a Porsche if all the roads are dirt. Don’t get me wrong: this isn’t Matt’s fault. He was relocated to Pensacola from an area that had the ability to deliver high picture quality. But second: now that you’ve moved, Matt, you’ve got to get a TV that doesn’t make everything look like it was made by Pixar.

As an epilogue, I understand that Matt is working on getting a new TV. His flat screen is mounted on the wall with an assembly that is rated to support 30 pounds. Matt’s TV weighs 90. This problem may take care of itself in the very near future.  In related news, I predict my next post will consist of live-blogging a TV falling off a wall.  I’ll be sure to write it with a view toward the post becoming admissible evidence, either in regard to Matt’s insurance claim or his wife’s murder trial.

This is the report from the field. Vice Squad out.

Late last week, the New Jersey Supreme Court introduced a revised standard for the admissibility of eyewitness identifications in criminal prosecutions. State v. Henderson, — A. 3d —-, 2011 WL 3715028 (N.J. Aug. 24, 2011). We here at Abnormal Use have not forgotten that we are products liability blawg. But the New Jersey court’s opinion deserves our consideration because it shakes the bedrock of the American judicial system.

Science occupies a strange place in American culture. By and large, Americans love science when the fruit of scientific endeavors yields technology that accommodates our lives. No one seriously questions the virtue of science insofar as we have acquired nearly absolute advantages in communications, defense, and health care. By contrast, Americans tend to hate science when we are forced to confront our personal or social beliefs. The most apparent of these tensions is in the conflict between science and religion. In the battle for supremacy, the ardent supporters of either science or religion typically charge their rhetoric with fire, brimstone, and fervor that would inspire even the most Southern charismatic preachers. In these debates, there is little room for rational discourse. Between these warring camps is the storied silent majority of Americans, not sure of what to think, who to trust, or what to believe.

We say all this to honor the intellectual courage and integrity of the New Jersey Supreme Court. Its opinion in Henderson will likely open a new front in the war on science; this time, a civil war within the American legal system. The Henderson opinion is 134 pages, and many of those pages detail scientific studies that question the usefulness of one of America’s most sacred institutions: the trial by jury. Make no mistake, New Jersey is not advocating that we abolish the jury trial; far from. But what New Jersey has done is to take the lead in forcing American legal scholars and professionals to ask ourselves, is there a better way? For decades, this question has been presented outside the formal structures of America’s governing institutions. New Jersey could have left it there. It chose not to; and now, Americans must examine our personal beliefs about jury trials in light of statistics and data. This will not be an easy self-critical analysis; in fact, it could very likely become a polarizing political issue. But if the effectiveness of the jury trial is questionable, as scientific research suggests, then better we address the matter sooner rather than later.

The narrow question in Henderson is whether there were appropriate safeguards in New Jersey to ensure that eyewitness identifications of criminal defendants had been validly obtained. As a matter of constitutional law, the United States Supreme Court had previously established a set of five factors to guide judges in passing upon the admissibility of eyewitness identifications. Manson v. Brathwaite, 432 U.S. 98 (1977). By subsequent opinion, New Jersey followed the United States Supreme Court’s lead. New Jersey v. Madison, 109 N.J. 223 (1988). These five factors were each intended to guage the subjective perceptions of eyewitnesses and to determine whether such witnesses could reasonably have made later identifications of criminal suspects (e.g., as from police line-ups). These factors were to be balanced against any evidence that the witness’s identification had been corrupted, inadvertently or otherwise, by suggestive comments or conduct by the police or other third-parties. Ultimately, the court used Henderson to refine this process and to clarify additional procedural steps.

To some extent, we are surprised that the court will continue to allow eyewitness identifications to be admissible at trial. In its opinion, the court states that “it has been estimated that approximately 7500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.” Furthermore, “of all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification.” The opinion cites the International Association of Chiefs of Police as the source of the preceding quote. If eyewitness identifications are not reliable, and they are actively causing wrongful convictions, we have to wonder whether they should be admissible at all. Perhaps it would be best to let eyewitness identifications go the way of polygraphs and confine such identifications to investigative tools.

But this is not why Henderson is important. More broadly, the court used Henderson to explore the scientific data and research regarding witness perception and memory. What it found was troubling. If there is any theme throughout the opinion, it is the court’s recurring statement that “memory is malleable.” What does this mean? To be blunt, it means that witnesses are generally not sure of what they saw, and they become less sure as time goes by.

This isn’t necessarily surprising. But consider this: the court relied on live-data studies from Sacramento and London for eyewitness identifications. The Sacramento studies involved roughly 500 people who were eyewitnesses to criminal conduct and participated in a later identification. Of the 500, 33 percent could not make an identification. Of the ones who did make an identification, 24 percent identified the “filler” (an innocent person in a police line-up). Of the ones who correctly identified the suspect, there was no data on whether the suspect was actually guilty of the crime committed. The London studies involved more than 2100 people. Of those, 41 percent could not make an identification. And of the ones who made an identification, 33 percent identified the filler.

The court also relied on controlled studies. In one study, the researchers sent an individual to have conversations of a few minutes each with store clerks. Five hundred clerks were involved, and they were not advised up front that they were participating in a study. Between two and 24 hours later, an undercover researcher would talk with the clerk about the individual they had had a conversation with and ask the clerk to pick the person out of a line-up. Seventeen percent of clerks could not identify the individual; of the ones who made an identification, 41 percent picked the filler. Perhaps more troubling, in some cases, the line-ups shown to clerks did not contain the individual they had talked with. In those cases, 36 percent of clerks still made an identification.

These problems with perception and memory are not limited to police line-ups. Research suggests they are more pervasive. In another experiment cited by the court, researchers asked participants in their study to watch a video of a car driving along a country road. The participants were first asked to estimate the speed of the vehicle. Then they were asked if they remembered seeing a barn in the video. There was no barn, but 17 percent of participants remembered seeing one.

The court also cited data from research that, not surprisingly, demonstrated how the way in which questions were asked-as in, the difference in the choice of even one word-substantially affected each witness’s perception and memory of the same event. When we apply the results of this research to the process of our judicial system, we have good reason to be concerned. Fact witnesses form the basis of any claim. But this research suggests that fact witnesses do not necessarily accurately perceive the facts they witness; and even if they do, over time, the recollection of the facts they perceived (as distinguished from the facts that happened) breaks down. Memory is malleable.

But wait; there’s more. Research further demonstrates that fact witnesses are not the only ones who experience misperception and corrupted memory. Jurors do, too. In another experiment cited by the court, researchers found that jurors (who obviously hear the same information) have different perceptions of the information heard, which leads them to have different recollections of the same set of facts.

To recap, let’s assume that an event happens in front of several witnesses. Research suggests that each of those witnesses will perceive different “facts” about that event. At trial, months or years after the event, each witness’s recollection of the “facts” perceived about the event will have changed. Each member of the jury will perceive different information about the testimony presented, and even that information will have changed by the time the jury gets to deliberation.

You must be asking yourselves by now whether there is any good news to come out of this. There’s not. It actually gets worse. If you’re wondering what the most important aspect of a juror’s decision-making process is, here’s your answer: research shows that the single most important factor for any given juror’s decision-making is whether he or she perceived a witness as “confident.” Assuming that jurors are trying to determine the truth of a matter, research demonstrates that jurors equate truthfulness with confidence. Therefore, juries are not deciding facts so much as they are deciding which witnesses are more confidently reporting the facts they perceived (whether those facts actually happened or not).

All this suggests that we may have something very, very wrong with our judicial system. Churchill famously quipped that democracy is the worst form of government except all the others that have been tried. Perhaps the same can be said about the American judicial system and the notion of trial by jury. However, we have to believe that the New Jersey Supreme Court intended its opinion in Henderson to spark a debate about how to craft a more perfect legal system. Let’s pray that the same intellectual courage and integrity that drove the court’s opinion will characterize the discussions that follow.

There is no question that South Carolina’s appellate courts are taking a harder look at expert testimony in products liability actions.  They’re looking not just at who’s qualified to be an expert, Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010), but also, the subject matter experts may address, Jackson v. Bermuda Sands, Inc., 677 S.E.2d 612 (S.C. Ct. App. 2009). Just last week, the court of appeals issued an opinion in 5 Star, Inc. v. Ford Motor Company, No. 4862 (S.C. Ct. App. Aug. 10, 2011), which addresses when expert testimony may be required.

We here at Abnormal Use have completely plagiarized the court’s account of underlying facts for your convenience. Here you go: “5 Star is a lawn maintenance and pressure washing company owned by Stan Shelby. In February of 2005, 5 Star bought a 1996 Ford F-250 pickup truck with 227,000 miles for $1,500.00. On September 24, 2005, Shelby parked the truck for the weekend in 5 Star’s North Charleston warehouse, which also housed tractors, trailers, lawn mowers, and other equipment related to the business. When Shelby returned two days later he discovered that a fire had occurred. The truck was destroyed, and the building and several other pieces of equipment were severely damaged. There were no personal injuries. Before suit was filed and before Ford was given an opportunity to inspect the truck, Shelby had the truck towed from his property and crushed.”

Here’s a few additional facts taken from the opinion. Apparently, “the most significant damage to the building was directly above the truck’s engine compartment, which indicated  . . . that the engine compartment was the area of origin of the fire.” Furthermore, “the only thing that will produce heat” in the engine compartment when the vehicle is not being operated is the speed control deactivation switch. “[This] switch serves as a mechanism to deactivate the cruise control when the driver presses the brake pedal. The switch is wired into the brake light circuit, which, for safety reasons, must remain energized at all times. Keeping this circuit energized allows the brake lights to be illuminated by pressing the brake pedal even when the vehicle is turned off. The switch is ‘redundant,’ meaning it serves as a back-up in case the primary deactivation switch malfunctions.”

Due to the constant flow of electrical current, the switch can get hot. Apparently, a fuse is connected to the switch, which is tripped at 15 amps of electrical current. This is designed to prevent the switch from overheating. However, the switch was only rated to handle 2 amps of electrical current. This means there’s a range of 13 amps of current above the switch’s rating but below the fuse’s trigger that can course through the switch uninterrupted. “The allegedly defective quality of the switch is that it allows brake fluid, which is flammable, to remain in dangerous proximity to the energized electrical circuit [which, as we’ve just discussed, can get hot], separated only by a thin membrane.” Oh, and by the way, “Ford concede[d] the switch was defective.”

The case was tried in September 2008. The jury returned a verdict of $41,000.00 in actual damages for 5 Star. And everyone lived happily ever after — until 10 days later when the appeal was filed.

On appeal, the court focused on whether 5 Star presented any evidence that Ford had breached its duty to exercise reasonable care in designing the switch / fuse system, which is necessary in products cases based on design defects. The court held that “5 Star not only failed to present any evidence that Ford’s conduct in designing the switch was negligent, 5 Star failed to present any evidence of Ford’s conduct whatsoever.” The court further held that a directed verdict should have been entered for the Ford Motor Company.

Judgment reversed.

In a footnote, the court stated that 5 Star did not brings claims against Ford under strict liability or breach of warranty. We don’t want to play Tuesday morning quarterback, but including those claims probably would have been game-changers.

There’s one thing that prompts some curiosity. The court held that “[b]ecause 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.” But under the facts of this case, was expert testimony really necessary? If 5 Star’s theory was that Ford should have used a different switch, or a different fuse, or should not have routed a constant electrical current through the switch, certainly, expert testimony on those matters would be appropriate. But we’re not convinced that 5 Star’s theory was that complicated. Based on our reading of the facts, 5 Star’s theory seems to have been very simple: Ford designed a system that allowed brake fluid to be in close proximity to a heat source; brake fluid is flammable; the combination of heat and fuel caused a fire that destroyed 5 Star’s truck. If this was Plaintiff’s theory, again, was expert testimony really necessary?

In a different, but comparable context, the court of appeals has previously held that reasonable people of ordinary prudence should know that ladders conduct electricity, Anderson v. Green Bull, Inc., 471 S.E.2d 708 (S.C. Ct. App. 1996), that using golf carts at night is dangerous, Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500 (S.C. Ct. App. 2009), and that using watercraft near swimmers can endanger the swimmers’ lives, Dema v. Shore Enters., Inc., 435 S.E.2d 875 (S.C. Ct. App. 1993). If people are assumed by law to have these types of knowledge, then wouldn’t the law also assume that the average person of ordinary prudence also knows that exposing flammable liquids to heat can cause fire? If the law would impose that knowledge on natural persons, then wouldn’t it also impose that knowledge on corporate persons? And if the matter were truly within the ambit of common sense, then why would expert testimony be necessary — even admissible — on the matter anyway?

Don’t get us wrong. We appreciate the court’s invigorated efforts to rein in expert testimony, which is too often manipulated and abused. And we also appreciate Ford Motor Company’s nearly single-handed efforts to finance the litigation that is clarifying the law of expert testimony in South Carolina. We’re just watching and waiting to see if this decision will get taken up to the Supremes.

It was a slow news day at the world headquarters of Abnormal Use. Oh sure, the global economy was in the process of melting down. Washington had just created a super-Congress. And Tiger Woods was making a triumphant, yet underwhelming, return to professional golf. Yawn. But as the bureau chief for Abnormal Use: Vice Squad, I was looking for some fresh, products-based inspiration that toed the thin gray line between entertainment and decency. It’s a dirty job down here in the trenches, but there’s nowhere else I’d rather be. So as I’m sitting at the Vice Squad desk, I happened across a pharmaceutical litigation discussion board. I’d thought I’d stop in, just to see what I could see. Happily, what I saw was my inspiration for this post . . . .

Let’s take a quick poll. Imagine you have a condition that requires you to take medication that may cause certain side-effects. How far down the following list of side-effects would you go before you declined the medication, knowing – obviously – that you can’t pick and choose which side-effects you want?

(1) May cause depression.
(2) May cause compulsory shopping.
(3) May cause compulsory eating.
(4) May cause pathological gambling.
(5) May cause hypersexuality or sexually risky behavior.

Based on this list, some folks may choose to stay away from the meds. Others may look at the list of side-effects and think, all things considered, it’s not so bad. Personally, I can name eight people off the top of my head that have more than half of these side-effects and don’t even take medication. I’ll bet you can too. (Feel free to post their names in the comments.)

The side-effects listed above are alleged to occur in connection with drugs that use “dopamine agonists.” To be honest, I don’t understand what a dopamine agonist is; I don’t know what they do; I certainly don’t know how they work; and frankly, I don’t care to know. If you want to know, the best I can do is give you a link to the Wikipedia page and wish you good luck.

Based on my otherwise extensive research, meds that include dopamine agonists are commonly used to treat Parkinson’s Disease and – of all things – Restless Leg Syndrome. If the critics of dopamine agonists are right, a person could go to the doctor to get treatment for his jimmy legs and walk out with an unhealthy sex addiction, an urge to eat at Golden Corral, and the need to let it all ride on 17 black. This, of course, has prompted litigation.

One plaintiff claims that as a result of dopamine agonists, he developed a shopping compulsion and an eating disorder, went to Vegas without telling his wife, began adulterous relationships, and forged checks from his wife’s account. Other plaintiffs have made similar allegations a la that they began using dopamine agonists, that they began committing adultery, and that they would go gambling for days without telling their spouses where they were. See, e.g., Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005). Again, this sounds exactly like people we already know.

A class action involving dopamine agonists and compulsive behavior was filed in Minnesota in 2006. The first case to be tried out of that litigation resulted in a jury verdict of $8.2 million. Charbonneau v. Boehringer Ingelheim Pharma., Inc., C.A. No. 0:06–CV–1215 (D. Minn. 2006) (Note: Since there was no written order regarding the verdict, I’ve included just the case name and docket number, if you want to do more research.  Or you can just take my word for it.). The other cases in the class were settled soon thereafter. Other litigation has sprung up around the country, and in many jurisdictions, is still pending.

As someone who normally practices corporate defense litigation, I began wondering what kinds of affirmative defenses were raised in these cases. I had a feeling they could be entertaining. I was right. I’ve set my favorite affirmative defenses out below:

(5) Proximity to Gambling Outlets. This defense is obviously designed to attack causation: “The drugs didn’t make your no-good father / husband / son / boyfriend gamble; it was the fact he lived next to Caesar’s Palace.” It’s at least plausible.

(4) Personal Susceptibility. “Plaintiff has always been depressed / been overweight / had a gambling problem / been a womanizer.” This seems to tread awfully close to inadmissible propensity evidence, but for an answer to the complaint, that’s a non-issue.

(3) Utility. “The benefits of using dopamine agonists outweigh any negative side-effects that may occur.” This seems like a hard sell when the condition is something like jimmy legs and the consequence is something like bankruptcy, adult-onset diabetes, and a no-expenses paid trip to a sexual rehabilitation clinic where the best you can hope for is sharing a lunch table with David Duchovny.

(2) Bad Gambler. There are no bad gamblers; only bad luck. Motion to strike this defense granted.

(1) Act of God. Act of God? Are you serious?  Isn’t this the same God that condemns avarice, lust, AND gluttony? Is this for real? Yes, this is for real. If you don’t believe me, check out this document: 2006 WL 1829496 (Affirmative Defense No. 5). I would pay to see this defense in action. “And therefore, Ladies and Gentlemen of the Jury, it was not dopamine agonists that caused the plaintiff to have illicit, extramarital sex and to bet on horses; it was God!” Statistically, you’d have 90 percent of Americans ready to punish you for even suggesting that God was the proximate cause of the plaintiff’s injuries. The other 10% would be ready to commit you for suggesting that a figment of humanity’s imagination was responsible. It’s a losing proposition. But it does remind me of the seminal case, United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971), which I’ve linked here for your reading pleasure.

I have two last observations. A quick bit of research on Westlaw yielded a number of decisions involving dopamine agonists, none of which came out of Nevada, which of course has legalized gambling and prostitution. How, if at all, this would affect the usefulness of “proximity to temptation” as an affirmative defense, who knows? But I thought it was an interesting bit of trivia.

Finally, in a number of the cases I looked at in preparing for this article, I couldn’t help but notice an interesting trend. Many plaintiffs alleged that as a consequence of using drugs with dopamine agonists, they developed hypersexual compulsions. In those same cases, there would usually be a spouse claiming loss of consortium. Go figure.

We here at Abnormal Use love a good legend: The Legend of Zelda; Legends of the Hidden Temple; City Slickers II: The Legend of Curly’s Gold; and for the ladies out there, Legends of the Fall. We especially love a good urban legend, such as the legend of the exploding toilet, which we recently came across in the news.

According to reports, a member of the Australian Air Force was recently injured critically during training when a port-a-potty he was using exploded. Ordinarily, the thought of an exploding portable loo would be comedic gold, as seen here. But not in this case. The airman was rushed to a local hospital where he received emergency treatment for third-degree burns to his head, face, arms, chest, and airways. Our thoughts and prayers go out to the airman, and we pray for his swift and healthy recovery.

But since this is a products liability blawg, it is only fitting and proper that we take a closer look at the Case of the Thunder from Down Under. The reports we’ve read relay an interesting, if dubious, chain of events that occurred immediately prior to the explosion. It has been suggested that the port-a-potty was not properly ventilated, and that some chemical – perhaps methane produced during the process of excretion – had been allowed to build up in the toilet to combustible levels. The airman entered the loo, lit up a cigarette, and the rest is history.

At first, this connection of causes and consequences seems plausible. Methane is a byproduct of natural bodily functions, and it is flammable. Case closed, right? The miracle of the scientific method has solved the mystery. And if we were to apply the same rigorous scientific methodology to other simple observations, we would come to the conclusion that Santa Claus exists because there is a North Pole, that the universe revolves around the Earth like the sun, and that thanks to Con-Air, the Rock, and Gone in 60 Seconds, Nicolas Cage is the greatest actor of our time. Scientifically, we know each of these to be false.

The same is true about the exploding toilet. Methane is flammable, but only under very limited circumstances. If this weren’t true, the tip of Florida would burn like a wildfire of Biblical proportions every time lightning strikes the Everglades. There’s also the small factual matter of how methane would be trapped at just the right quantity inside a port-a-potty. Even if every aspect of the toilet’s ventilation were sealed off perfectly, the user would still have to open the door.

The fine folks over at Snopes.com have previously debunked the legend of methane causing toilets to explode. The guys at “MythBusters” have done the same thing. Yet the legend inevitably limps on.

To be clear, we at Abnormal Use believe that toilets can and do explode. Not because of poor ventilation. But instead, because of: (1) some combustible substance other than methane being introduced into the restroom environment (intentionally or not); or (2) explosives being planted in the loo. Either way, we hope the injured airman finds out who’s responsible and gives them the business, Aussie style.