Well, it’s Election Day.  It’s finally arrived after a seemingly permanent campaign. Sigh. Don’t worry; we’re not going to make any endorsements or anything, nor are we going to dwell upon the nature of this year’s election. We’re products liability lawyers, not pundits! But, as we are inundated today with maps, graphs, and polls, we thought the comic book cover above, that of Captain America #250, might be appropriate. Yes, it was published a while back, in 1980, itself a presidential election year.

“The People’s Choice! Captain America for President!” proclaims the campaign button on its cover. Spoiler alert: He didn’t win (at least not in the main Marvel Universe).  But that’s been remedied in a far more recent 2012 storyline, apparently, as recent news reports suggest Captain American won as a write-in candidate in Marvel’s Ultimates universe. Apparently, the writers of Captain America comic books really, really like comic book superhero presidents.  Oh, well.

Click here for our Election Day 2010 post, and of course, you can revisit our previous Captain America related posts, please see here, here, here, and here.

NBA teams pay their players a lot of money. Last season, the league minimum salary was $490,180. With so much invested, team owners don’t like injuries to their star players. Especially when those injuries were caused by an allegedly defective product.

According to a report from The Sacramento Bee, the Sacramento Kings and Guard/Forward Francisco Garcia have settled their claims against Italian exercise ball manufacturer, Ledraplastic S.p.a. Apparently, the federal suit was the result of a fractured forearm sustained by Garcia when the exercise ball on which he was standing exploded while he was lifting two 90-pound dumbbells. The accident occurred in October 2009, shortly after Garcia had signed a 5-year, $29.6 million contract extension. Garcia missed the first four months of the following season recovering from his injuries. The team sought to recover the $4 million in salary they had to pay while their player sat on the bench recovering. While the financial terms of the agreement are confidential, the attorney for Garcia and the Kings indicated the settlement was “extremely beneficial” to his clients. When the plaintiffs are a well-compensated, finely tuned machine and his employer, we expect the attorney’s description was accurate.

Even though Garcia and the Kings’ damages may have been substantial, it would have been interesting to see how a jury would have handled the product liability claims against Ledraplastic. The basis for the plaintiffs’ claims is that the exercise balls warrant that they can withstand 600 pounds and claim to be “burst resistant.” In product testing during the litigation, the exercise balls were shown to burst around the 400 pound mark.

As an initial matter, the manufacturer’s claim to be “burst resistant” is not necessarily a fallacy. “Burst resistant” does not equate to “burst proof.” The ball undoubtedly was resisting explosion at all points up to 400 pounds. Therefore, the claim is accurate, to a degree. Unfortunately, the problems rest with the weight resistance points warranted by the manufacturer.

The fact that the ball ruptured at a point less than 600 pounds is not necessarily a deal breaker. For example, if the ball was being used in a manner outside its intended purpose (i.e. lifting weights while standing on the ball, perhaps), then the original resistance points may be legitimately compromised. However, it does not appear that Ledraplastic ever warned that weights should not be used in conjunction with the exercise ball – a warning that could be helpful when using exercise equipment. In fact, as part of the settlement, the manufacturer has circulated a letter among its distributors advising them that the ball should only be used with body weight.

Unfortunately for Ledraplastic, it had to learn about the need for this extra warning at the hands of a wealthy athlete and an NBA franchise.

Above, you’ll find the cover of Tiger Lawyer #1, published by Challenger Comics not too long ago.  Although the concept is pretty self explanatory, we’ll go ahead and ask: What is Tiger Lawyer? Well, according to this site, the series centers around “a Bengal Tiger that happens to be a high-profile criminal defense lawyer.” The series was created and written by Ryan Ferrier (whose work we previously mentioned here back in May of this year).  One thing is for certain: the title character appears to be a fierce litigator. (If you want to see some excerpts of Tiger Lawyer in action in the courtroom, click here for some previews from the Challenger Comics website).

Well, you may have heard that the USA Network this week canceled “Fairly Legal,” the series starring Sarah Shahi as a quirky lawyer turned mediator. Alas.  We weren’t big fans of the show, but we have written about it on occasion.  Back when the show premiered in January of 2011, we reviewed the pilot and premise and also interviewed the show’s creator and show runner, Michael Sardo. (We thought we were pretty cool at the time for scoring the Hollywood interview.). When the show returned for a second season earlier this year, we were on the case again with a new review. Now the show belongs to the ages.

Is this truly the end of Buckyballs, about which we wrote here and here? (Hat tip: Overlawyered).

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Last week, we reported on a Halloween-themed lawsuit aimed at Six Flags. In that piece, we briefly debated some of the potential torts found in some of our favorite horror movies. Let us tell you, slasher films could be a plaintiff’s lawyer’s dream.

Well, apparently, we weren’t the only ones pondering such things. Lawyer-journalist Amber Nimocks of South Carolina Lawyers Weekly read that post and interviewed our very own Nick Farr on fanciful horror movie causes of action. The article, entitled, “Ghoul Torts,” ran in the print edition of this week’s issue. The article begins:

Which occupational hazard for lawyers becomes most acute this time of year? The inability to watch horror movies without constantly drafting claims for the victims in your head.

For those who may have an online subscription to South Carolina Lawyers Weekly, you can check out the full version here. If you don’t have a subscription, we hope you can find someone who does. Farr did a great job explaining this very important issue.

Above, you’ll find the cover of Bugs Bunny’s Halloween Parade #2, published way, way back in 1954. That’s about as family friendly a Halloween comic book cover as we could find for this festive occasion (and you should have seen some of the frightful alternatives we considered).  As you’ll recall, in our most recent edition of “Friday Links,” we directed your attention to our recent and past Halloween related posts. We encourage you to revisit those scary entries from our archive of posts.  As always, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a safe and happy holiday.  Be on the lookout for interesting Halloween product stories for us!

Now that I’m in my early thirties, I have to worry about things I never had to before. Like putting sunscreen on. Specifically, like putting sunscreen on the top of my head. I’m not thrilled about this development in my life. But it turns out I really wasn’t given a choice. Somewhere between genetics and the practice of law, I never had a chance of having a full head of hair.

In any event, I’m told that since my hairline has entered the autumn of my life, I have to put sunscreen on my head to avoid skin cancer. But last week, I learned that depending on the sunscreen I use, my head might catch on fire. That’s because Banana Boat issued a recall for some of its spray-on sunscreen products that may have a nasty tendency to react aggressively to open flames and sparks. When it comes down to it, I really only have two requirements for sunscreen: (1) it must prevent my skin from sunburn; and (2) it must not result in my face burning off. Other than that, I’m pretty low maintenance.

There’s no doubt that Banana Boat regrets the injuries that have been caused by its product. But we have to give them credit for their response. After the first injury was reported, Banana Boat conducted an internal investigation to determine whether the report was founded, and if so, what the cause was. Banana Boat followed that up with voluntarily engaging in the recall. It’s not easy or convenient for a company to conduct a massive product recall; there’s certainly an adverse impact to the company’s sales and reputation in the short term. But taking this type of affirmative action to address a problem is the responsible thing to do, and we salute Banana Boat’s response.

Kim Jong-il was a lot of things. Supreme leader of North Korea. Center of an elaborate cult of personality. And, the greatest golfer the world has ever seen. Who knew he was also a pioneer of science? Rumor has it that Kim Jong-il slowed the aging process by injecting himself with the blood of young virgins. A recent study out of Stanford University suggests the idea is not as crazy as it sounds.

Specifically, the study found that the blood of young mice injected into older mice reversed some of the effects of aging. The mice receiving the injections demonstrated improved learning and memory similar to that of their younger counterparts. There was no word on whether the younger mice were of the virgin variety.

While we have no meaningful idea where Kim came up with the young blood idea (although we harbor some suspicions) , it makes sense on a somewhat rudimentary level. Blood is the source of life. Transfuse an old body with young blood. Keep old body young. Sounds logical. Science, however, has a more intelligent answer:

[The researcher] said that the young blood most likely reversed ageing by topping up levels of key chemical factors that tend to decline in the blood as animals age. Reintroduce these and “all of a sudden you have all of these plasticity and learning and memory-related genes that are coming back”. Which factors in particular are causing the effect is unclear since there are hundreds of thousands in blood.

According to the study, young blood transfusions could one day fight off the effects of aging, including Alzheimer’s. If, in fact, this comes to fruition, it could be a monumental breakthrough. When that occurs, expect Kim’s estate to take all the credit posthumously. (And we can’t wait for the young blood products liability lawsuits that will inevitably arrive in that not so distant future.).

(Hat Tip: Executed Today).

Above, you’ll find the cover of Batman: Legends of the Dark Knight Halloween Special #2, published many moons ago in the halcyon days of 1994. For some reason, Halloween is an overrepresented holiday in comic books, although what would you expect from a medium replete with costumed protagonists?

Ah, 1994. Those were the days. Did you know that on October 31, 1994, the band Phish covered the super majority of The Beatles’ White Album at a gig in Glens Falls, New York? We remember hearing about it that year, but the show was not released – officially, at least – on CD until nearly a decade later. That has little, if anything, to do with Batman, but it has everything to do with 1994.

Whatever the case, whether you’re celebrating Halloween early this weekend, or if you’re waiting until the official day next week, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a safe and happy holiday. If you’re in the Halloween spirit already, though, you can check out some of our past Halloween posts.  Here is our very first, if brief, Halloween post from October 31, 2010 to be compared to our equally short Halloween post from October 31, 2011.  But there’s far more substantive Halloween content in our archives! Do you remember Steve Buckingham’s fabled “I Want My Halloween” pop culture post from just last year? Or, how about last year’s “The Top 6 Paranormal Products on eBay Right Now“?  Earlier this week, we ran “Halloween Fear Fest Leads To Litigation.” Oh, and back in 2010, in a scary edition of “Friday Links” redubbed “Scary Links,” we brought you a list of our favorite scary movies. How’s that?

In some other non-Halloween related news, our own Chris Kelly, the partner in charge of our Charlotte office, had an article published this week in The Transportation Lawyer: A Comprehensive  Journal of Developments in Transportation Law (October 2012 – Volume 14, Number 2).  The title: “Judicial Note and Google: Ancient Doctrine and Internet Search Engine.” Believe it or not, there’s a whole subset of jurisprudence out there on Google Maps, which is a helpful utility to any transportation lawyer. Check it out!

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

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

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

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

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

On October 1, 2012, the Southern District of Florida issued its opinion in the case Hernandez v. Altec Environmental Products, LLC, No. 10-80532-CIV, 2012 WL 4511341 (S.D. Fla. Oct. 1, 2012).  The case involved Guadalupe Hernandez, an employee of Asplundh Tee Expert Co., who suffered a severed hand while operating a wood chipper manufactured by Altec Environmental Products, LLC (“AEP”).  Mr. Hernandez and his wife brought suit against AEP and another Altec entity, and both defendants moved for summary judgment in the case.

The wood chipper at issue in this case was a CFD 1217 model.  As designed and manufactured, the wood chipper had a guard that covered the bottom of the housing for the in-feed roller, which was referred to by the Court as the safety cover.

The safety cover was bolted to the wood chipper with eight bolts.

Here’s a picture we found of the chipper:

More pictures can be found here.

On the day of the accident, however, the safety cover was not on the wood chipper.  Why?  Because it had been removed by the Plaintiff’s employer.  Mr. Hernandez was aware of that fact.  Apparently, the safety cover was removed because the machine had a tendency to jam with debris, which needed to be constantly cleared from the in-feed rollers to keep the machine working.

Mr. Hernandez had been trained by his employer to clear debris from the machine with his hand, which could only be done with the safety cover off the machine.   Mr. Hernandez was not paying attention as he cleared debris with his hand on the day of the accident, and that’s when he got his hand severed.

At the summary judgment phase, the Plaintiffs argued the machine was defectively designed, causing it to jam repeatedly.  Plaintiffs contended that this purported defect actually encouraged operators to remove the guard and leave it off, which they argued was a foreseeable event.  This was a creative argument, but the Court wasn’t buying it:

At the hearing on the instant motion, the Court pressed Plaintiffs’ counsel to cite any cases that held a manufacturer strictly liable for failing to modify a design of a product that when used as directed was not harmful or dangerous, but when foreseeably misused or put to an unintended use, could be found to be unreasonably dangerous.

The plaintiffs cited Norton, an Eleventh Circuit case in which the key piece of evidence against the manufacturer on a design defect theory was the failure to install a dead man’s switch on a mower.  But the Court in this case quickly dismissed that argument: