It was my privilege recently to give an ethics presentation to the Upstate Chapter of the South Carolina Women Lawyers Association.  The mission of SCWLA is “to enhance the status, influence and effectiveness of women lawyers in the State of South Carolina.  SCWLA will, through advocacy, action and association, take positive steps to ensure that women lawyers achieve their fair share of opportunities and benefits available to those in the legal profession.”  The SCWLA has over 700 members and emphasizes the opportunity to meet and help other women by sponsoring CLE seminars, monthly regional lunches, and mentoring programs. It’s a great group.

Later, after making my presentation, I noticed an old book on myshelf, The Official Lawyer’s Handbook, by D. Robert White, Esq., published in 1983 by Wallaby Books.  It was given to me by a friend while I was in law school shortly before I graduated in 1987.  Some of the chapter titles provide a clue to the author’s attitude and approach to the legal profession.  They include “Summer Clerkships: Summer Camp for the Incurably Overachieving,” “Once You’re a Partner: The Crock at the End of the Rainbow,” “Legal Ethics – And Other Great Oxymorons.” One chapter begins with a cartoon in which an older male lawyer shakes hands with a young female lawyer.  The caption: “So you went to law school and now you want to practice law . . . I think that’s cute.”

Um, yikes.

While reviewing the remaining section titles, I noticed that there was a chapter on “Women and The Law (You Don’t Have to Wear Briefs to Write Them).”  Since I had just left a meeting of the SCWLA, I thought it was a good idea to read that chapter.  I suspect that the author’s attitude was considered condescending even then. It is probably best to remember that this book was published in 1983, at a time when women made up only about a third of the total law school population, but that’s no excuse. However, despite his cavalier attitude, the author anticipated that views of women in the profession would change over time.  As he ultimately noted: “When women become rainmakers, their success is assured.  At that point, the only question is whether women will start talking dirty and popping each other with rolled-up towels.”

The chapter concludes with this commentary:

“How is a Woman to Cope?”

In any law firm with partners old enough to have gray hair (or no hair), a woman will encounter “traditional” attitudes.  There are three alternative strategies she can adopt in response.

1. The Crusader.  This bold approach involves pointing out every indiscretion and protesting every inequity, no matter how minor the offense or how senior the offending partner.  “You get out of the elevator first, hair-bag!”  It’s a noble battle, but exhausting and potentially fatal to one’s career.  Make sure you know what you’re getting into.

2. The Mata Hari.  A few women, motivated by contempt or frustration, attempt to exploit those feminine resources that male partners appear most willing to recognize and reward.  You can spot a hard-core Mata Hari by her black mesh stockings with seams.

3. The Survivor.  This pragmatic approach consists of equal parts diplomacy, competence, thick skin, and a strong sense of humor.  “Sure, I’ll get you some coffee, Mr. Turk – if you’ll pick up some pantyhose for me when you go out to lunch.”  It includes traces of Katharine Hepburn-like insouciance and Margaret Mead-like tolerance of Neanderthals.

This approach may involve a few concessions to circumstance.  But these concessions are purely cosmetic.  In legal jargon, they are procedural rather than substantive.  You should not feel your core values threatened in situations that require you to endure a conversation about sports, or to resist running around the room with an air freshener when someone lights up a cigar.

Reading this chapter reminds me that we have come a long way in this area, and many others.

We here at Abnormal Use love checking out product warning labels. Such labels, while serving a necessary purpose, can sometimes seem like a bit of overkill. Must we really warn that sleeping pills may cause drowsiness? Or, better yet, that a beach ball should not be used as a life saving device? The truth is that companies have a reason for these labels – to protect themselves from potential litigation even from the most over-zealous consumers.

We mention this as way of backdrop for an interesting situation that arose last week at The Heart Attack Grill in Las Vegas. According to Yahoo! News, a man recently suffered a heart attack while eating the Grill’s “triple bypass” burger. Fortunately, the man survived the attack, and by all accounts, should make a full recovery. While there is no indication of any potential lawsuits rising out of these events, we here at Abnormal Use had to question whether there could be.

While restaurants have been sued for causing obesity, we are not aware of any restaurants being sued for causing heart attacks. Obviously, the isolated consumption of a burger is not enough on its own to cause an attack. Eating similar foods, however, over a period of time can reek havoc on one’s arteries. Knowing as much, what should the Heart Attack Grill do to protect itself from future lawsuits?

To the restaurant’s credit, it has taken measures to provide adequate warning. If its name was not enough, a sign on its door warns that its food may be hazardous to your health. The Grill’s servers are known as “nurses” and its owner, “Doctor.” With menu items like the “triple bypass” burger and “flatliner” fries, customers should have fair warning the meal would not win the approval of “The Biggest Loser.”

It should be noted that while the restaurant jokingly warns its consumers, it also entices them with its slogan, “Taste worth dying for.” To make matters worse, anyone over 350 pounds eats at the restaurant for free. Unlike the lure of a forbidden fruit, however, a consumer must assume the risk before partaking in a butterfat milkshake. (Yes, it is on the menu).

While this may seem absurd, don’t be surprised to see a restaurant promoting unhealthy food show up on the litigation radar in the future. Fortunately for the Heart Attack Grill, no one can say they didn’t provide fair warning.

Thinking about trying one of those electronic cigarettes to help you quit smoking?  May we suggest going with the nicotine gum instead?  It may taste terrible and be tough to chew, but at least it won’t blow up in your face, as one Florida litigant is now alleging.  His electronic cigarette allegedly blew up in his face, leaving him in a hospital with severe burns, missing his front teeth, and missing a chunk of his tongue.

The man was in his home office when the device allegedly exploded, leaving behind burned carpet, furniture, pictures, and office equipment.  That must have been quite the explosion.   The culprit appears to be a faulty lithium rechargeable battery inside the device.  Investigators do not know the brand of electronic cigarette or type of battery. The fire department chief, Joseph Parker, said that “the best analogy is like it was trying to hold a bottle rocket in your mouth when it went off.”  Ouch!  With a statement like that, we’d say its a pretty safe bet that Chief Parker will be called as a witness for the plaintiff if a lawsuit is filed when a lawsuit is filed.

We previously reported on some of the issues surrounding electronic cigarettes here and here.  However, we certainly didn’t see this BOMBshell coming.  It should be interesting to see what may have caused this explosion, since there appear to be no other similar incidents involving electronic cigarettes.  Was this guy using the device improperly?  How old was this electronic cigarette? Was the battery put in incorrectly?  Did Al-Qaeda get their hands on it?

Discovery in this case should be interesting.

Remember the old adage, “There’s no such thing as bad publicity?”  You may not want to mention it if you run into a General Motors executive anytime soon.  GM saw its prized Chevy Volt’s January sales plummet over 60 percent due, at least in part, to negative publicity over alleged fire risks.

As we previously posted last November,  the Chevy Volt – GM’s extended electric car – was alleged to be at risk to catch fire due to potential design flaws.   The bad press continued in December in the mainstream media.   The result?   In January of 2012, GM sold a whopping 603 Chevy Volts.  This was down from 1529 units the prior month.  By comparison, Nissan Leaf sales were also down in January, but only from 954 to 676.

So it certainly appears that the alleged fire risk played a large role in the declining sales, even though it may not account for the entire decline.

Both GM and the National Highway Traffic Safety Administration (NHTSA) recently concluded that the alleged fire threat is much ado about nothing.  As we also posted in January, we are pretty confident this investigation was completely on the up and up.  It’s not like the NHTSA and the federal government have a vested interest in GM, right?   As an extra incentive, perhaps the feds should throw in a fire extinguisher along with the $7,500 tax credit that buyers get when they purchase a Volt.  They could certainly afford a few fire extinguishers since it doesn’t look like GM will ever sell all of the 200,000 units for which the feds agreed to provide that tax credit.  But we digress.

All of this just goes to show, even if the lawsuits over a defective product don’t get you, the bad press might.  Then again, we’re pretty sure some sort of class-action lawsuit will follow shortly.  They always do, right? Stay tuned.

Way, way back in the early 1970’s, there was once a television program called “The Young Lawyers,” which starred Lee J. Cobb, Judy Pace, and Zalman King (who passed away earlier this month at age 69). At some point during the show’s run, Dell Comics published the comic book above dedicated to the program. Its tagline for this issue reads: “When a bomber strikes, who is to blame?” We would suggest that the person to blame is likely the bomber. (Maybe they young lawyers never took Crim Law.).

Max Kennerly of the Litigation & Trial law blog offers this great post entitled “The Real Risks of Writing a Legal Blog.”

As you know, we here at Abnormal Use go to great lengths to chronicle the hot coffee litigation.  Some have accused of us of trying to relitigate a long dead issue (or is it beat a dead horse?).  However, it seems these issues may be more relevant than even we realized.  Just last week, at the local Starbucks drive-thru right here in our own Greenville, South Carolina, we overheard:  “Give me a Venti Americano, two Splendas, and . . . make it extra hot!  I mean, really hot!” Contributory negligence, perhaps? Assumption of risk?  Or something more sinister? Perhaps this zealous customer was seeking a golden payday.  Stay tuned to Abnormal Use to find out.

Here we go again!  According to this report by Jon Campisi at Legal News Line, “[a] Philadelphia woman who claims she became burned by a hot cup of coffee at local Burger King is suing the fast food giant in state court.”  The incident occurred on Valentine’s Day 2010, two  years ago this week, and the Plaintiff alleges that “[t]he lid had not been properly placed on the cup, causing the hot coffee to spill on [the Plaintiff]” when the fast food employee handed it to her at the drive thru.  We’ll be following this one.

Hey, deponents, don’t call your 88 year old grandmother “The Creeper” at your deposition.  Okay? Thanks.

Recently, we learned of a proposed class action filed in the Middle District of Florida against video game maker, Bethesda Softworks, LLC. In the lawsuit, captioned Walewski v. ZeniMax Media, Inc., No. 11CV01178, 2011 WL 2790627 (M.D. Fla. July 18, 2011), Bethesda and its parent corporation ZeniMax are accused of deceptive conduct in “designing, manufacturing, marketing, distributing and selling a defectively designed video game” to consumers. As video game aficionados, we here at Abnormal Use were intrigued. According to the complaint, Bethesda’s Elder Scrolls IV: Oblivion has an inherent design defect that occurs suddenly and without warning. The animation defect, referred to in the complaint as an “abomb,” causes spell effects, doorways and traps to freeze, thus “crippling” the player’s gameplay. Because the abomb drops in “as little as 200 hours of gameplay,” players must rush to finish the game and cannot enjoy the “enormous world” and “unlimited possibilities” advertised on the game’s packaging.

At first glance, the complaint reads more like an editorial from The Onion mocking gamers than a pleading in federal court. We would hate to be the attorney charged with explaining to a federal judge how the abomb affects spell casting and hinders a gamer’s ability to become a Level 35 dark elf. However, we here at Abnormal Use can sympathize with the plaintiff’s abhorrence of video game freezing.

We can still remember our younger days when video game defects could easily be cured by blowing into the cartridge and banging the Nintendo console a few times. As technology has improved, these old-fashioned remedies are no longer available. One of the major improvements in this field is the cheat codes – check out new world hacks, here.  But is a federal court the proper venue to redress these problems?

If the basis of these claims were another product, a computer for example, rather than a video game, this lawsuit likely would receive less scrutiny. If our computers froze after 200 hours of use, denying us access to the Internet, we may be more likely to consider the product defective. But a video game? Maybe it’s the stigma talking, but we doubt this one will hold up in a court of law.

This defect allegedly occurs after at least 200 hours of gameplay. In the named plaintiff’s case, the defect arose after 450 hours. What is the shelf life on a video game? The plaintiff may not consider 450 hours ample time to explore Oblivion, but we consider it the equivalent of a pickup truck rolling over 200,000 miles. Four hundred fifty hours is over an hour of gameplay per day for a year. Maybe the abomb is Bethesda’s cue that your social life may be lacking.

According to reports, a Florida magistrate has recently recommended the case be dismissed on jurisdictional grounds. However, it will be interesting to see if this is just the beginning of the video game defect lawsuit. We too have experienced our own fair share of “abombs.” We just choose to if them the old-fashioned way – by turning the game off.

P.S. According to the complaint, every copy of Oblivion is affected with the abomb. We can personally attest that we purchased Oblivion when it was released in 2008 and we still maintain the ability to cast spells and open doors (not that we do this type of thing on a regular basis).

According to the Chicago Tribune, a New York man has sued Frito Lays in a proposed class action claiming that the “all natural ingredient” labels on the company’s Sun Chips and Tostitos products are deceptive. According to the complaint, the chips contain ingredients derived from genetically modified corn and oils. Further, the plaintiff alleged he paid an additional 10 cent “premium” for the chips over their Doritos counterpart. The plaintiff seeks damages in excess of $5 million.

The case is captioned Shake et al. v. Frito Lay North America, Inc., No. 12-408 (E.D.N.Y. Jan. 30, 2012).

These allegations raise a couple of pertinent issues. First, can the plaintiff really claim that he paid a premium for “all natural” chips?  For many, a ten cent premium may seem trivial.   We here at Abnormal Use appreciate the desire to purchase organic or all-natural foods. In doing so, we expect to pay a premium.  However, we would expect these premiums to far, far exceed the 10 cents alleged by the plaintiff.  Ever try purchasing organic milk for 10 cents more than its non-organic counterpart?  When faced with the decision of purchasing two bags of chips, one “all natural” and one not, we doubt a 10 cent differential in price is a deciding factor in the process. In fact, we might not even notice the difference in cost.

Second, to our knowledge, the Food and Drug Administration has no definition for “natural” as it applies to food labels.  Of course, it may be difficult for the FDA to define such a term.  What is “all natural” anyway? Certainly, the phrase can be left to varying interpretations.  Should “all-natural” be restricted to plants grown without the use of pesticides?  Or should the definition go further?  Apparently, the plaintiff’s beef with Frito-Lay is that the company uses organisms genetically modified in a lab by swapping genetic material across species.  It is unclear whether the allegations stem from the “genetic modification” itself or that the modification itself which occurred in a lab.  Genetic swapping occurs naturally all the time.  We can not even begin to count the number of products we enjoy on a daily basis that were created as a result of “natural” genetic swapping.  Are these products considered “all natural”?  Where do we draw the line?

The desire to eat foods the way they were intended is a noble feat.  However, we shouldn’t be so quick to dispose of the advances of modern science.

Let’s not be so quick to pass judgment on new plant species created by the marvels of modern science. Who knows, maybe we are on the brink of the new “natural”?

As lawyers, we are a sanguine and cynical bunch, but we don’t really have to be, do we?  Sure, we may believe that the most unreasonably dangerous and defective product in our life is our own heart, but we can vanquish those thoughts from our mind today, Valentine’s Day.  Accordingly, we here at Abnormal Use wish you a wondrous and resplendent day.  Yes, Valentine’s Day may be a greeting card holiday, one seized upon by chocolatiers and flower sellers and would-be purveyors of happiness.  But, if we can pretend for a lunar cycle that we remain actual human beings and not just toiling attorneys at law, that may not be such a bad thing after all, eh?

So, without further ado, Happy Valentine’s Day to you and whoever is your special someone.

Oh, and depicted above is the cover of Star Wars: A Valentine Story #1, published by Dark Horse Comics not so long ago in 2003..  You can see that even intergalactic heroes face their own dilemmas on this day. Of course, our question is this: If the events depicted in Star Wars occurred “a long time ago, in a galaxy far, far away,” how do they even know about Valentine’s Day?  Another George Lucas plot hole, we suppose.

And, of course, you should revisit last year’s Valentine’s Day post – featuring not one but two comic book covers – here.

I’ve handled products cases involving a wide spectrum of products, from residential gas grills to tractor-trailer components.  Frankly, I enjoy the variety and the opportunity to learn about new industries and products and meet the people who are associated with them.  I understand, however, that many lawyers – especially plaintiffs’ lawyers – often focus on one product.  It gives them the ability to develop and expertise on a certain subject and, as a result, handle more cases because of their familiarity.

I spoke with a plaintiff’s attorney recently who files a lot of litigation on behalf of plaintiffs allegedly injured by portable gas cans.  Although we didn’t speak at length about the issues involved with the particular product, he mentioned something about an inexpensive component part that prevents fires but was not readily incorporated into the cans themselves by the manufacturers.  A simple Google search on “gas can litigation” and browsing through the solutions forum revealed that many plaintiffs’ attorneys actually list this type of litigation on their websites as a distinct area of would-be expertise, proving what the lawyer had impressed upon me: that gas can litigation is big business these days.

I ran across the recent case of Murray v. Traxxas Corp., — So. 3d —, 2D10-3789, 2012 WL 279657 (Fla. Dist. Ct. App. Feb. 1, 2012), which appears to illustrate my colleague’s point.  The facts of the case are relatively simple.  Two boys were trying to build a fire using leaves, sticks, and a cigarette lighter at their grandparents’ house so they could roast marshmallows.  They had trouble lighting it, so they searched for an alternative fuel source.  What they found in the garage was a portable gas tank containing gasoline.  As one of the boys tipped the open gas can toward the pile of leaves and the lighter, before any fuel spilled out of the can, an explosion occurred.  One of the boys sustained severe burns as a result of the explosion.

Witnesses who looked at the gas can after the accident, including a fire inspector, described the can as looking “bowed out.”  Photographs were taken by the inspector, but the can was disposed of by the grandparents, who believed it still posed some danger.

Inevitably, a battle of the experts ensued; it focused on whether a “flashback” explosion had occurred.  The plaintiffs’ expert argued the can was defectively designed because it did not have a so-called “flame arrestor,” an inexpensive component that would have prevented such an occurrence.  According to the expert, “flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans,” and by not incorporating one into this particular can, the manufacturer defendants were negligent.

The defendants moved for summary judgment, which the trial court granted on the grounds that the can itself had not been maintained for inspection and testing.  As the appeals court remarked, the disposal of the gas can gave rise to two particular problems for the trial court.  First, there was no way to tell whether the original fuel was in the can, or whether it had been replaced by a different fuel.  Second, the trial court held, the plaintiffs could not meet their burden of proof to show design defect because the can itself could not be tested. The court of appeals didn’t see it the same way.  It noted that the plaintiffs had proven an unbroken chain of custody for the can and its contents.  Furthermore, the court observed, it was unlikely that the original can could have been tested at all after the damage it sustained in the explosion and, in any case, similar cans could be tested because the manufacturer had been positively identified.  The appeals court reversed the summary judgment and remanded the case for further proceedings. Businesses these days have IT Support Clayton to help them regulate and have control.

We don’t yet know the outcome of this case, but from a plaintiff’s attorney’s position, this litigation is pretty savvy.  Here is a product that, allegedly, can be made safer with a very inexpensive device.  That, combined with the potential for serious burn injuries and property damage from cans without the device makes it a pretty attractive piece of litigation. Defense lawyers should be aware of these arguments when defending these cases and prepare for them accordingly.

Behold! Above you’ll find an image of an old Dell comic book featuring Disney’s own Mickey Mouse! It appears that our hero has donned the garb of a private detective, and he’s even gone so far as to post an advertisement hawking his services as a “Private Eye for Hire.” Perhaps he is even assisting local law firms investigate their clients’ potential claims and defenses. Let’s hope, though, for the mouse’s sake, that he has complied with all state regulations and properly secured his state-issued investigator license.  We can certainly imagine a situation where Mickey Mouse is deposed and vigorously cross examined about his failure to comply with the state’s licensing scheme.  Poor Mickey.

In response to yesterday’s post observing the tenth anniversary of our editor Jim Dedman’s graduation from Baylor Law School, friend of the blog and Baylor lawyer Eric Nordstrom sends in this YouTube movie clip noting the significance of the passage of a decade.  It’s a clip from the 1997 flick Grosse Pointe Blank,  a film we couldn’t love more, so we direct you to itww. on this day.

Earlier this week, we ran not one, but two posts on the perils of social media and how your advocate opponents might use it against you in the future. As you may have seen, our editor Jim Dedman had a general piece on the issue, while guest author Stuart Mauney offered a real life example of his own Facebook posts being used against him at a mediation by an opposing attorney. These posts prompted some discussion in the legal blogosphere. We’re happy to report that Bruce Carton at Law.Com’s Legal Blog Watch picked up on the story. We encourage you to visit his post and peruse his readers’ comments.

Don’t forget: You can follow Abnormal Use on Twitter at @gwblawfirm and on Facebook here. (In fact, check out our GWB 2.0 website for all of our social media endeavors as a blog and law firm.).