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.

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

But that would never happen, right?

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

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

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

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

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

Above is the cover of Three Who Came Back!, a comic book published by the Social Security Administration in 1965. (Yes, you read that right: a comic book about Social Security).  You can read the whole issue here.  Here’s what Slate had to say about it:

Some of these comics sold the program as a way that the government could help free young people from familial obligation. The crew-cut young men and well-dressed girls wanted to help parents in dire straits, but they shouldn’t have to. Social Security would make sure Tom wouldn’t have to skip engineering school to take over the family farm, and Janet wouldn’t have to postpone her wedding to earn money for her family. (Yes, Janet’s “dream” was marriage, even in a comic published in 1965; the 1950s died hard.) The SSA also published a book of “factoids” that associated Social Security with celebrities (the program was “the world’s largest autograph collection”) and tried to impress with the program’s technological reach (the names were held on 2005 reels of microfilm!).

(Hat tip: Slate).

Truly, this is a chilling newspaper obituary section. Not to be missed.

The November/December edition of the Greenville County Bar News is now available online.  Check it out here!

Finally, as we previously mentioned, the ABA Journal named us to the Blawg 100, the list of their favorite legal blogs in the nation. Now, the ABA Journal is asking readers to vote for their favorites, as well. We’d greatly appreciate it if you could take a moment to vote for us!

To vote, please go here. A menu will pop-up in the middle of the screen saying: “Click here to register now!” Click on that box to continue.

A very brief registration menu will appear, and you’ll be asked for a username and email addresses. This should take just a moment.

Once you have registered, you’ll be returned to the main blog menu. Take a look at the blue menu and click on the “Torts” header, which will cause a new menu of five blogs to appear. Click “Vote Now!” next to the entry for Abnormal Use.

And then you’re done! We’d greatly appreciate your support!

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

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

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

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

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

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

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

On June 10, 2005, a four-month-old child, identified only as “A.H.” was injured when the car in which he was riding was T-boned by another vehicle.  A.H. was riding in an Evenflo Discovery Model 316 car seat at the time.  During the accident, the seat detached from its base,and was found in the rear cargo compartment after the crash. Following the accident, A.H.’s father sued Evenflo in the United States District Court for the District of Colorado.  Evenflo filed a motion in limine, seeking to exclude evidence of car seat models not involved in the accident.  The Court issued its opinion on October 31, 2012. See Hadjih v. Evenflo Company, Inc., No. 10-cv-024345-RBJ-KMT, 2012 WL 5363332 (D. Col. Oct. 31, 2012).

The major issue: the plaintiff’s desire to introduce evidence of testing by the National Highway Traffic Safety Administration on the Evenflo 390/391, the model that succeeded the 316.  During testing, the 390/391 detached from its base during side-impact crashes.  No testing had been done on the 316, because it was designed and manufactured before testing by the NHTSA started. Evenflo sought to exclude evidence of the 390/391 generally, and specifically, with regard to the testing.  In both instances, the Court undertook a “substantially similar” analysis.  As the Court noted, “in products liability actions, substantially similar acts or occurrences are often permitted to demonstrate the existence of a defect, to prove notice, or to refute testimony given by defense witnesses.”  A higher degree of similarily is required if the plaintiff is using the other product to show causation than if the plaintiff is simply using the product to show notice.  In this case, the plaintiff was using the 390/391 model to prove the defect, so a higher degree of similarity was required.

The Court held that both general evidence of the 390/391 model, and evidence of the testing involving the 390/391 model, could be used by the plaintiff, and denied Evenflo’s motion in limine.  In both cases, the focus of the court remained squarely on the plaintiff’s theory of the case. The plaintiff’s theory of the defect in the 316 model was that the plastic latching mechanism did not work properly.  Evidence in the case tended to show that the two carseat models had nearly identical latching mechanisms; in fact, the carseats could each latch into the bases designed for either model.  Other differences between the models, the court ruled, would go to the weight of the evidence, but not its admissibility.

In terms of the specific testing by the NHTSA, Evenflo argued that the testing itself involved crashes that were substantially dissimilar to the accident at issue in the case and, therefore, the testing results should be excluded.  Again, the court focused on the plaintiff’s theory, which was that the car seat carrier dislodged from its base because of intertial forces.  The court held that the difference in delta-v forces, the weight of the child/dummy, and other differences went to the weight that the jury will give to the evidence, and let the evidence in.

We will watch to see if this case continues to trial and try to determine what impact these rulings have on the judgment, if any, rendered in the case.  This is a good refresher on the “substantially similar” test, at least in terms of how Colorado interprets it.

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

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

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

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

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

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

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

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.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope you had a swell Thanksgiving holiday yesterday!

Above you’ll find the cover of Walt Disney’s Comics and Stories #15, published way, way back in 1941.  December of 1941, to be exact.  Wow.  We revisit a lot of old comic book covers here at Abnormal Use, and many of them are many decades old.  But when you stop and think about the publication date of December 1941, it’s astonishing to consider what the people who first saw or bought this issue at that time were doing and thinking that month. December of 1941 is one of those eras you learn about in the history books, and it’s always somewhat jarring to see the artifacts of everyday life pop up from such a notable time period. And how about that ten cent cover price, too?

Whatever the case, it looks like Donald Duck had an eventful Thanksgiving that year.

Yesterday, we here at Abnormal Use saw Steven Spielberg’s new film, Lincoln, and we were pleased to see actor Raynor Scheine in a brief cameo as a member of the House of Representatives.  As you may recall, in My Cousin Vinny, Scheine played Ernie Crane, the eyewitness for the prosecution whose ability to see through a dirty window, trees, vegetation, and foliage is fodder for Vinny during cross examination. As you also may recall, we interviewed Scheine earlier this year as a part of our coverage of My Cousin Vinny‘s 20th anniversary, and in that piece, Scheine let us know that he’d “just had a call back audition for Steven Spielberg’s Abraham Lincoln he’s doing here in Virginia.”  We’re glad he got the part!

Please check out this recent blog entry at Comics Alliance dedicated to Thanksgiving comic book covers!

Happy belated blog birthday to our friends at the great legal tech blog, iPhone J.D.! Way, way back in January of 2011, we here at Abnormal Use interviewed Jeff Richardson, the author of iPhone J.D. Click here to revisit that fateful post!

“How I Fry A Turkey,” by Brian Comer of the South Carolina Products Liability Law Blog.  Enough said.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a happy Thanksgiving. We trust that it will be full of touchdowns and tryptophan, just as every Turkey Day should be (as we have noted in the past).  We do hope you had a chance to revisit and read our 2010 post about Thanksgiving in America over the course of the past two centuries. As you may recall, we unearthed a century old article in which a 1910 lawyer/writer looked back to 1810 and forward to 2010, and we couldn’t resist responding to it.

By the way, above you’ll find the cover of Simpsons Comics #51, published not so long ago in 2000. As you can see it is clearly Thanksgiving-themed, but we will leave the task of interpretation to you, dear readers.

On August 17, 2012, the Florida District Court of Appeal issued its decision in Castleman v. R.J. Reynolds Tobaco Co., 97 So.3d 875 (Fla. Dist. Ct. App. 2012) [PDF].  The case represents another decision arising out of the Engle class action against the tobacco company, jurisprudence which Abnormal Use has been following for some time now.  Prior posts on the subject can be found here. As a reminder, the Engle class is comprised of Florida citizens and residents, and their survivors, “who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”  Those who fall into that class enjoy, inter alia, an extended limitations period for filing suit and res judicata on several findings of fact.

Two other dates are extremely important for those seeking membership in the class.  First, the class member(s) have to show that their tobacco-related disease or condition first manifested itself before the trial court’s order certifying the class, which was filed on November 21, 1996.  Second, suit must have been filed before January 11, 2008.

And now to the facts of this case.  Lewis Castleman started smoking cigarettes at the age of 19 in 1953.  He continued to smoke for 30 years but quit in 1983.  It was not until the early 1990’s that he began experiencing shortness of breath and chest pain, and it was not until 1998, when he underwent heart bypass surgery, that his doctors linked the symptoms to his smoking history.

Mr. Castleman and his wife sought membership in the Engle class, but the trial court denied them membership.  The appeals court affirmed summary judgment for R.J. Reynolds in this case, holding that because Mr. Castleman did not attribute his symptoms to his smoking history until 1998, he did not meet the class definition as of November 21, 1996 because the disease or condition had not “manifested” by the applicable date.

The appeals court relied on another case, Frazier v. Philip Morris USA, Inc. [PDF], in which the Third District Court of Appeal considered the definition of “manifestation” and held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for intiating a lawsuit against a tobacco company – there must be something more that causes the individual to attribute the symptoms to tobacco use.  Because Mr. Castleman did not make that connection until 1998, the court reasoned in this case that the condition did not “manifest” itself before the date of the court’s order.

It strikes me that the courts in these cases are defining “manifestation” in a way that is 180 degrees from the way it is interpreted in many other cases.  It is strange to have a plaintiff arguing for an earlier manifestation date; usually, under traditional discovery rule interpretation, it is the defendants arguing that the plaintiff “should have known” that his disease was caused by the product at issue at an earlier date than the plaintiff cares to acknowledge.  In these cases, however, to have a chance at class membership, the plaintiffs are actually arguing for the earlier date, so that they can get the benfit of the Engle class provisions.  We will continue to monitor – and report on – this very interesting class as it develops.