In November, we ran a post regarding Chevy Volts and their purported proclivity to catch fire after impact.  Sometimes long after impact.  Like three weeks after impact.  During the course of our discussion, we encouraged all the products hypochondriacs out there to take a deep breath and consider that maybe, just maybe, the Volts weren’t defectively designed, and therefore, were getting a bad rap.

I’m not usually a voice of moderation or restraint.  And so it was an odd thing for me to be doing, actively encouraging both moderation and restraint at the same time.  Overall, it was a very uncomfortable experience for me, and frankly, not much fun.  

However, in this case, it was absolutely the appropriate response.  On January 20, the National Highway Traffic Safety Administration (“NHTSA”) released a statement exonerating Chevy Volts regarding the conclusions of its investigation into the post-crash fire risk of Chevy Volts.  What was that conclusion?  Well, after a six week investigation, the Administration determined that “no discernible defect trend exists.”  In other words, Chevy Volts are not homicidal death machines hell-bent on burning their unsuspecting passengers alive.  I’d say that’s a definite win for consumer product safety.  Case closed.

While it may be true that all’s well that ends well, I have a couple of lingering concerns.  First of all, the entire investigation lasted six weeks.  Which (we suppose) included Thanksgiving, Christmas, New Years, and the MLK holiday.  Let’s be straight: How much federal work do we really think was done over that period of time?  Four, maybe five days, tops?  Seems like a brief investigation for an issue that received so much attention initially.

Frankly, I’m not so concerned with the amount of time that was involved in the investigation, primarily because I thought the allegations were bogus to begin with.  I think I’m more concerned that there was so much alarm at the outset of the investigation for a claim that had no merit, and was shown to have no merit in a very short amount of time.  After all, even if the Government had worked each and every day for the 6 weeks of their inquiry, in terms of investigations, 6 weeks is but a twinkling of the federal eye.

By contrast, how long will Chevy Volts feel the effects of their unfounded reputation as mobile electric chairs?  How much business did Chevy lose as a direct and proximate consequence of alarmism and over-reaction?  How much business will Chevy continue to lose?  Obviously, the nature and severity of these harms is unquantifiable; the damage has been done, and the extent cannot be known.  Of course, the Volt’s name has now been cleared, but surely that must seem like cold comfort.

One year ago today on January 25, 2011, we first published our Stella Liebeck McDonald’s Hot Coffee Case FAQ post.  We are still proud of that piece, which we intended to serve as an objective accounting of the case using only the primary sources, pleadings, motions, and other court documents, as well as some contemporary media coverage of the case from 1994.  It is by far one of our most popular posts, and we suspect that it led to later citations in The New York Times and NPR. We have written a lot about that case since then, and we hate to dwell, so we would just direct your attention back to the FAQ file once more today, its birthday.

Coincidentally, in 2011, the Liebeck case reemerged in the mainstream media as a talking point, primarily due to the release of Plaintiff’s attorney Susan Saladoff’s would-be documentary, “Hot Coffee.” Apparently ignoring our objective accounting of the case, some have continued to promote the myth that McDonald’s serves an unreasonably dangerous product. Just this week, The Pop Tort blog set out on a campaign to highjack a McDonald’s Twitter promotion. The blog has encouraged its readers to utilize the company’s #McDStories hashtag to spread the word that “seriously injuring customers and then viciously fighting them in court . . .” is wrong. Or, in the alternative, you can tweet about meeting your spouse over a honey mustard dipped McNugget.

Of course, we are all entitled to our opinions. We just hope our FAQ file has helped provide you with some basis for them – whatever they may be.

On Thursday, January 19, mega-company Johnson & Johnson and the State of Texas reached a settlement for the bargain price of $158 million in a Medicaid fraud lawsuit.  The allegations?  That J&J committed Medicaid fraud by engaging in illegal marketing activities and providing kickbacks to boost sales of the anti-psychotic drug Risperdal, used primarily to treat schizophrenia and bipolar disorders.  The suit also alleged that J&J told doctors that the drug could be used to treat children, for which it did not have FDA approval.  Oops.

And why was $158 million a bargain?  Well, consider what has happened to the company in other states that have also sued J&J on similar theories.  In Louisiana, the Court ordered the company to pay $258 million; in South Carolina, the bill was a cool $327 million.

As reported by the Washington Post, then, $158 million doesn’t look so bad:

“For Johnson & Johnson, it’s a mighty easy result,” said Eric Gordon, a clinical professor at the University of Michigan’s Ross School of Business. “The legal team at Johnson & Johnson are doing high fives.”

Indeed.

Last year, we here at Abnormal Use had the pleasure of interviewing Adam Avery, Brewmaster of the Avery Brewing Company and producer of a Belgian-style ale known as Collaboration Not Litigation.  As you may recall, Collaboration Not Litigation is the by-product of a “friendly mediation” between Avery and fellow brewer, Vinnie Cilurzo of the Russian River Brewing Company.  When the two discovered they each produced a beer called Salvation, they got together, had a few drinks, and mixed their respective beers together.  The end result – Collaboration Not Litigation.  That is a great story with a great ending.

We remind you of this tale as an introduction to the greatest ever lack of collaboration.  Faced with a similar situation, the Oregon-based Steelhead Brewing Company sent a cease and desist letter to Freetail Brewing Company, demanding that they stop using the name “Hopasaurus Rex.”  Apparently, Steelhead never tried to settle this dispute over an alcoholic beverage.  Freetail responded to this lack of courtesy as follows:

There is nothing like the realization that your legal fees purchased a life-like rendition of a bipedal carnivore from the Cretaceous Period.  We imagine Steelhead didn’t find this letter quite as humorous as we did, but we hear the Flying Spaghetti Monster had a few laughs with his carbon copy.  At least Steelhead can take solace in knowing they will be the recipient of a high-five at the next Great American Beer Festival.

Freetail’s response should be a reminder to us all that sometimes the simplest answer is the best one.  We understand Steelhead’s concerns.  We too have sent our fair share of demand letters under the guise of our firm’s letterhead.  As Avery and Freetail have demonstrated, however, some problems can be solved with a little open dialogue (and perhaps a few beers).  Brewmasters have grasped this concept.  Why can’t we?

Depicted above is the cover of Batman Gotham Adventures #27, published not so long ago in 2000.  Here’s our question: If Batman has been, as the cover suggests,  “wrongfully accused” and jailed, why have his jailers permitted him to remain in costume? Surely it is a violation of the Gotham City Detention Center’s policies and procedures to permit a criminal defendant to remain in costume.  We suspect that Batman ultimately escapes this predicament, but we also surmise that if he had been revealed to be Bruce Wayne during his confinement his flight from justice would have been much, more difficult.  By the way, this is not the first time we’ve looked at a cover from this series.  See here for a similarly puzzling cover.

According to this tweet by our own Stuart Mauney, the South Carolina Bar House Delegates debated the rule against perpetuities yesterday.  There’s something we never thought we’d hear of again.  What next? The rule in Shelley’s case?

For years and years, we’ve loved The Onion.  This week, that satirical paper published a piece entitled, “Supreme Court Overturns ‘Right v. Wrong.’”  That’s big news.

Lawyerist asks its lawyer readers: “Is Facebook ruining your life?” We’ll get back to you on that one.

Jeremy Grabill of The Product Liability Monitor pauses to comment upon the release of Susan Saladoff’s “Hot Coffee” documentary on DVD.  Grabill notes: “[F]or every sympathetic plaintiff that Ms. Saladoff (the film’s producer/director) presents, there are no doubt an equal (if not greater) number of truly frivolous claims that could be chronicled, especially in the mass tort context.” As you know, you can follow our continuing coverage of that film and the fabled Stella Liebeck McDonald’s hot coffee case here.

If there is one thing we loathe, and we mean really despise, it’s the exasperating “Objection!” television lawyers make unaccompanied by any other statement clarifying the basis of the objection.  Television lawyers, according to this Tampa criminal justice lawyer, seem to believe that if they merely yell the word “Objection!” with some exaggerated sense of annoyance, disdain, or self-righteous outrage, then the television judge, impressed by the level of indignation apparent from the face and voice of the objecting attorney, must therefore rule on his or her behalf.  However, we all know that such objections are rubbish, as they do not preserve any error whatsoever on appeal.  But screenwriters don’t know that, and accordingly, the world is a terrible place indeed.

Sure, sure, we understand that television lawyers play by a different set of rules than do real litigators.  In that simplified world of television courtroom drama, trials are quick and easy, closing statements last only two minutes, and lawyers speechify beyond belief.  To get the hang of how lawyers behave in reality, you must learn more about Whitney S. Boan, P.A. We believe that these irksome television objections occur so often, so frequently, that they must be stopped, and we here at Abnormal Use have got to stop them.

Accordingly, we now call upon Hollywood screenwriters to write follow up justifications for all objecting television lawyers.  These follow up clarifications can be short and quick so as to not disrupt the narrative flow of the television program.  For example, a lawyer can “Objection, hearsay!” or “Objection, badgering the witness!” or even, for the sake of the old school practitioners, “Objection, res gestae!”  Sure, these objections may be just as deficient as the use of the single word, but at least it would be some type of improvement from one we typically see on such programs.  Let’s at least make these objecting television lawyers seem somewhat competent, eh?  Perhaps the most ambitious among those screenwriters will instruct their characters to offer even more substantive objections, citing rules, cases, or courtroom custom.  Then, perhaps, we at Abnormal Use could once again watch legal dramas withour frustration.

(As an aside, we must share a remark made by our evidence professor many years ago indicating that only television lawyers say “Objection, ask and answered” and that the proper objection for practicing litigators is “Objection, repetitious.”)

In fact, we’d also like to see television judges do a bit more than respond with single words, as well.  On many shows, you will only hear the judge say “Sustained!” or “Denied!” If you are lucky, maybe the judge will say something like “I’ll allow it” or “Move along, counselor,” but that’s it.  Come on, television judges! Apparently in the Hollywood legal television program Mad Libs employed by screenwriters, that’s about all they can permit a judge to say on screen.  We can do better!

Colorado’s Stanley Gale is a lot of things.  A skier with a Level I Alpine certification.  An alumnus of the Alpine Ski Patrol.  An expert qualified in the areas of ski safety and accident reconstruction.  However, in Squires v. Goodwin, No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment.  Preposterous, you say?  How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask?  Certainly, the court must be in error.

In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado.  The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a bi-ski manufactured by Mountain Man, Inc.  After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree.  The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center.  Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man.  The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.

Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert.  According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.”  Further, the plaintiff argued Gale’s opinions were based on “sound principles.”  However, these “sound principles” were never articulated.

The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings.  Gale has never been employed by a ski equipment manufacturer and has no formal training in the field.  While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis.  Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.”  Gale identified no formal methodology as a basis for his opinions.

Gale’s opinions did not cease with his “broken buckle” logic.  He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.”  While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments.  The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.'”  Apparently, these opinions are not the reliability envisioned by Rule 702.

Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale.  Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture?  Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of Mona Lisa Vito (Marisa Tomei) in My Cousin Vinny.  If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right?  After all, with 38 years of experience on the slopes, Gale has seen a lot of skis.  Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter (Lane Smith) and Judge Chamberlain Haller (Fred Gwynne).

Fortunately for Mountain Man, the Court got this one right.  Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result.  As for Gale, well he won’t be able to add “ski equipment expert” to his CV.  Maybe he can spend his time away from the trial, designing that braking device.

Wisconsin man sues
Mountain Dew. Claims his bottle
Contained a mouse. Eek!

Defendant moves for
Dismissal. The grounds? The claim
Is impossible.

Mountain Dew would have
Turned the whole mouse into a
“jelly-like substance.”

Wait, you’re kidding right?
This cure, worse than the disease!
Marketing? PR?

To do the Dew, or
To not do the Dew, Shakespeare,
That is the question.

Ronald Ball v. PepsiCo, 09-L-440 (Madison Co., Wisc. 2011)

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the legacy and leadership of Dr. Martin Luther King, Jr. In honor of the occasion, we direct you to this website from ABC News, which offers a complete transcript of Dr. King’s famous “I Have A Dream” speech. As you know, we here at the firm now have offices in three cities in the Carolinas. Today, our offices are closed. For a listing of MLK Day events in Upstate South Carolina see here, for Columbia, SC, see here, and for Charlotte, North Carolina, see here. (By the way, the comic book cover depicted above is that of Golden Legacy #13, published in 1972. The Fitzgerald Publishing Company, which produced that comic book series dedicated to African American history, has posted the entire contents of this issue on its website here.).

Quick! How can we seek exclusion of Superboy’s statement on the cover of Superboy #151, published way, way back in 1968.  Wouldn’t this cover, without any accompanying text, make for a good law school exam question? Is his confession admissible? Is this a custodial interrogation?  Has he been Mirandized? (Apparently not, as the police officers seem to surprised by the hero’s arrival to have already read him his rights.). We suppose it’s a good thing that Superboy is making that declaration during the last days of the Warren Court.

Today is Friday the 13th.  Beware.

Remember last month, when we here at Abnormal Use published a piece on the Christmas classic, “Grandma Got Run Over By A Reindeer”?  If you don’t recall, you can revisit that holiday themed article here. Well, get this. Yesterday, Sam Favate at the Wall Street Journal Law Blog reported on a federal judge’s refusal to dismiss a copyright arising from a version of that song.  See here for more information on that proceeding. Everything ultimately gets litigated, we suppose.

Friend of the blog Steve McConnell of the Drug and Device Law blog will be a part of a free CLE webinar on January 25.  When we saw his name as a presenter, we thought that the CLE would be a gritty analysis of the legal themes of Springsteen’s immortal “Darkness of the Edge of Town” LP, but actually, it’s about the duty to warn in the digital era.  For details, see here.  And remember: it’s free!

Rachel WIlkes Barchie of the Law Law Land blog has a post with a great title: “Creepy Tweeters Have Speech Rights Too.” Fortunately, there are no references to Abnormal Use in the piece.