“When the Master Jailer imprisons someone, it’s a life sentence,” proclaims a villain, presumably the Master Jailer himself, on the cover of Superman Family #219, published way back in 1982.  But hasn’t the Master Jailer heard of the federal sentencing guidelines? He can’t just sentence someone to life! There’s a complicated scheme by which he must evaluate aggravating and mitigating circumstances before imposing a sentence! (Obviously, the federal guidelines apply because he appears to be in a federally insured bank!)  But the real victim here is Supergirl, who is imprisoned because of the Master Jailer’s apparent abuse of discretion! 

Apparently, there’s a band in Georgia called The District Attorneys.  The Dead Journalist blog reviewed the band’s new EP, Waiting on the Calm Down: The Basement Sessions, here.  We think they should tour with the Pennsylvania band, The Lawsuits, who we interviewed earlier this year here.

Our editor, Jim Dedman, finds himself in Cary, North Carolina today for the North Carolina Bar Association Law Practice Management annual convention (where there is sure to be much discussion of social media, legal technology, and other fun topics).  If you’re there, say hello!

McDonald’s is back in the news this week with yet another hot coffee lawsuit. (Don’t worry, dear readers, we’re not going to do another full post on a hot coffee case for a while, but we did think it merited a brief mention here in this edition of Friday Links).  According to this report from the Law360 blog, an Illinois woman sued the fast food chain after her toddler sustained severe burns from McDonald’s coffee.  We don’t know how the toddler came in contact with the coffee.  For the good of America, let’s hope the beverage didn’t leak from his baby bottle. We suspect this one may be in the news again someday, and if so, we’ll keep you posted.

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Yesterday morning, his second submission was published at that site.  The topic: “Social Media Discovery – Timing is Key.” Jim’s post is a response to an earlier blog entry by Ernest Svenson at his Ernie the Attorney blog, which you can find here.  Jim’s post begins:

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

Read the rest of the post here.

Once you start issuing subpoenas for social media discovery, you’ve tipped your hand to your opponent.  In his post, Jim offers some suggestions on how to structure and time one’s social media discovery to maximize results and avoid potential spoliation.

Dear Abnormal Use:

I have been a faithful follower of your blog since its inception back in 2010.  You bring unprecedented personality to the perilous world of legal blogging.  The interwebs would be a sad place without your daily presence.  Your work is greatly appreciated.

I am writing to you, however, not to sing your praises.  Rather, I wanted to advise you of a horrible oversight made on your blog.  In March, you compiled a list of the top songs about lawyers, judges, and attorneys.  After recently re-reading that post, I noticed that you omitted the classic album of Bob Noone & The Well Hung Jury, “2nd Helping of Chicken Suit for the Lawyer’s Soul.”  I respect Abnormal Use tremendously and can only assume this omission was inadvertent.  Mistakes happen.  I understand.  I am not trying to get a negligent associate fired.  I only want to give you time to correct your mistake before the ABA Journal announces its top legal blogs of 2011.

It is almost laughable that a mistake of this magnitude could occur.  “Chicken Suit” contains 14 Grammy-caliber tracks and not one was mentioned by your blog.  How could you forget “Why Don’t We Get Drunk & Sue”?  The song is the perfect blend of Jimmy Buffett and dramshop laws.  How can you include Metallica’s “And Justice For All,” but omit “My Lawyer’s Back”?  Someone is going to get in trouble for this.

Bob Noone is not just a singer – he’s an attorney-singer.  He graduated from the West Virginia School of Law in 1983 and is currently  Of-Counsel at the firm Bucci, Bailey, & Javins, LC in Charleston, West Virginia.  He doesn’t just write great legal music.  He lives its.

I must admit that as I write this letter, I find myself growing more agitated that your editor could allow this error to occur.  You champion yourself as being a top-tier legal blog, yet you fail to acknowledge “Cover of the A.B.A.”  The song has a distinct message – you can’t be famous until you find yourself on the cover of the ABA Journal.  You of all people should know this.  You were named one of the Top-100 blawgs by the publication last year and have requested that we nominate you yet again.  How dare you bite the hand that feeds you.

Here’s your problem.  You became too enamored with the so-called “music” of Bob Dylan and Bruce Springsteen.  Last time I checked, Dylan and Springsteen never took the Bar Exam.  Guess who did?  Bob Noone.  Noone knows the law.  In order to write about the law, you have to experience the law.  Listen to “Every Minute Must Get Billed,” and tell me it doesn’t bring a tear to your eye.  For the record, Axl Rose knows as much about being a lawyer as Toby Keith knows about war.

Let’s put our differences aside.  Your mistakes are easily corrected.  If you can’t include “Chicken Suit” in its entirety, just give me one song.  “Lawsuit Riot”?  “My Will”?  “Probation Polka”?  The choice is yours.  Ignoring this letter is the only way you can go wrong.

I like you.  I really do.  But for the love of all things sacred, give Bob Noone and the Well Hung Jury the respect they deserve.

Sincerely yours,

A Concerned Reader

Thanksgiving is just around the corner, and you know what that means: James Bond movies will be playing around the clock. On at least three different channels. All weekend long. For whatever reason, in America, nothing says “Thanksgiving” like British spies, beautiful women, and exotic, tropical locales. And I’m thankful for that.

For many reasons, my favorite Bond movie is Goldfinger. It has the best theme song. It has some of the most iconic scenes in cinematic history (e.g., the golden girl, the laser, the nuclear device that Bond defuses with 0:07 seconds remaining). It has Oddjob. It has Bond’s love interest, who my puritan editor Dedman is allowing me to refer to only as “P. Galore.” And, perhaps most important for the Kentucky Colonel in me, the movie takes place in Kentucky – Kentucky! – and involves horseracing. This movie was destined for greatness.

But that’s not why Goldfinger is the best. It’s the best because of the interaction between 007 and the villain, Auric Goldfinger. Without question, some of the best dialogue in the entire Bond movie franchise happens between Bond and Goldfinger, and it’s usually Goldfinger doing the talking. Which leads me to the jumping off point for this post. One of my favorite quotes, not just in Bond but probably in life, comes from Mr. Goldfinger himself: “They have a saying in Chicago. Once is happenstance. Twice is coincidence. The third time, it’s enemy action.”

It was 4am on April 14, 2011 in Barkhamsted, Connecticut. Homeowner Storm Connors was awakened by the sound of commotion in his garage. He went to investigate. That’s when Connors found his garage consumed in flames. Inside were two vehicles. One, a brand new lithium-ion battery powered Chevy Volt; the other, a Suzuki Samurai that Connors had converted to electric power. Both vehicles were charging their batteries at the time of the fire, and both were badly damaged. There was some initial speculation that the Volt’s battery caused the fire; but this was never confirmed. There are also reports that the same Volt caught on fire again four days later, this time, while it was not charging.

One fire? That’s happenstance.

It was early June in Wisconsin. Three weeks before, the National Highway Traffic Safety Administration had conducted safety tests on a Chevy Volt; specifically putting the Volt through the “pole” test (which simulates a 20mph side-impact) and the “rotisserie” test (which simulates the vehicle in a collision-related roll). The Volt passed with flying colors, earning a five-star rating, which is the highest rating that can be awarded. Three weeks later, apparently while sitting at a federal junkyard, the Volt caught fire. After investigation, it was determined that the failure to de-energize the battery, along with some other case-specific circumstances, most likely caused the fire in question.

Two fires? Mere coincidence.

It was two weeks ago at Lake Norman, North Carolina. A Volt was charging in a homeowner’s garage when a fire broke out . . . . I think you know where this is going.

And now there are the alarmists. “Three times!,” they yell. “Clearly this is enemy action! Chevy and / or the Volt has declared war on American garages. They are terrorists and must be stopped. At the very least, we must bring legal action against them, suing in every state we can for civil conspiracy, RICO, and of course, unfair trade practices. These three occasions of unfriendly fire establish a pattern of conduct that prove an evil intent toward the American people. General Motors is a scourge upon civilization!”

Alright, let’s all take a deep breath and find a quiet moment to thank God we’re not among the ranks of the products hypochondriacs.

So far, the investigation of these matters has been inconclusive. Neither GM nor the government has been able to reproduce the circumstances of the fire that occurred in June. And let it not be forgotten that the June fire happened three weeks after crash testing took place. In terms of an imminent threat to health and safety, this isn’t one. And as for the fires in April and November, the causes have yet to be determined. Although at this point, there’s no more reason to suspect that the fires originated with the electric vehicles than with faulty wiring in the walls of the garages.

But let’s say that the alarmists are right and that lithium-ion batteries caused each of the three fires at issue. To them I say, “So what?” There are somewhere around 8000 Volts on the road right now. Three malfunctions out of 8000 cars ain’t too shabby. I’ll play those odds.

Personally, I hope this is all part of a very clever marketing strategy. Sales of electric vehicles seem underwhelming, due in no small part I’m sure to the reputation that EVs have slightly more power than a spinning hamster wheel. Most folks would probably be shocked to learn that an electric vehicle has enough power to start a small fire, let alone the power to burn their own house down! It would open up a whole new male market. Forget Corvettes and Porches. If you want power, get a Volt. The ads practically write themselves. “Volt. If you don’t squeeze every ounce of performance out of your car in between charges, your car will self-destruct because you don’t deserve to drive it; the Volt will also take your house, your golf clubs, and any other vehicles you may own because you don’t deserve them either. Most drivers need not apply.”

If it were up to me, I would run the ad during this Thanksgiving’s Bond-a-thon. And I would be thankful for my royalty check from GM.

Abnormal Use has been following the so-called “Engle progeny” cases with interest as they continue to wind their way through the courts.  On September 21, 2011, a court of appeals in Florida dealt another blow to the R.J. Reynolds Tobacco Company in R.J. Reynolds Tobacco Company v. Brown, 70 So.3d 707 (Fla. Dist. Ct. App. 2011) by upholding a jury’s award of compensatory damages to the spouse of a deceased smoker.

This is a well written decision by Judge Dorian K. Damoogian.  It provides a brief and understandable history of the Engle case line to provide context for the Brown decision, and then does the same for the specific procedural history of the Brown case.

Mr. Brown, the plaintiff’s decedent and spouse, was a long-time smoker of cigarettes manufactured by a predecessor of R.J. Reynolds (“RJR”), and he died of esophageal cancer he developed as a result of the habit.  After Engle was decertified, Mrs. Brown sued the tobacco company, relying on certain factual findings that came out of Engle to prove her case for strict liability, negligence, fraud by concealment, and civil conspiracy-fraud by concealment.

The first phase of the Brown trial was devoted to determining whether or not Mr. Brown qualified as an Engle class member, which would entitle his spouse to the aforementioned factual findings.  To prove this, Mrs. Brown had to show that her husband was addicted to RJR cigarettes containing nicotine; and, if so, was his addiction a legal cause of his death.

After the jury found both of these facts to be the case, the trial moved to phase II, in which the jury was to determine (i) whether RJR’s conduct was a legal cause of Mr. Brown’s death; (ii) comparative fault; and (iii) damages. Before opening statements, the trial court instructed the jury that because it had determined Mr. Brown to be a member of the Engle class, the following findings were binding upon it:

“One, R.J. Reynolds Tobacco Company failed to exercise the degree of care with which a reasonable cigarette manufacturer would exercise under like circumstances. Two, R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous.”

The court advised the jury that Mrs. Brown had admitted Mr. Brown was comparatively negligent.  The jury found RJR’s negligence was a legal cause of Mr. Brown’s death; RJR’s defective and unreasonably dangerous cigarettes were a legal cause of Mr. Brown’s death; and RJR and Mr. Brown were each 50 percent responsible for Mr. Brown’s death. The jury awarded Mrs. Brown $1.2 million in compensatory damages, which the court later reduced to $600,000 based on the jury’s apportionment of fault. The trial court entered a final judgment for Mrs. Brown.

At issue in this appeal was the viability of Mrs. Brown’s negligence and strict liability claims.  As the appeals court framed it, “RJR primarily argues that the trial court gave the Engle findings overly broad preclusive effect, relieving the plaintiff of her burden to prove that RJR committed particular negligent acts in violation of a duty of care owed to Mr. Brown and to prove that the cigarettes Mr. Brown smoked contained a specific defect that injured Mr. Brown.”

To no avail.  The appeals court upheld the findings of the trial court as well as the award to Mrs. Brown.  As we have outlined in a prior post, the main dispute was a discussion between claim preclusion and issue preclusion, and the effect and implications of the differences between those two concepts.   It appears RJR was still using the same argument that failed it in the Martin case.  It didn’t work this time, either.

The appeals court made the following holdings in affirming the trial court’s decision:

From the November 11 edition of The New York Times:

Today it is possible to write the date with the repetition six times of a single digit.  It is the eleventh day of the eleventh month of the eleventh year, and so one may save time and just put it down 11-11-11.  It will be a century before the same thing can be done on Nov. 11, 2011 though, of course, on Dec. 12th next year there will be a close approximation to it with 12-12-12 as a correct presentation of the date.

Still today for the last time until the error is changed will one digit appear seven times in the date, however it be written.  Today, 11-11-1911, 800 years ago this was beaten by writing 11-11-1111, on Nov. 11, 1111 but it is not likely that the precise monkish scribes at that time would have allowed so slovenly a method of recording an essential fact.  As none of us is likely to be living in the year 11111, it would be well for those who delight in curious trifles to take their fill of enjoyment out of this method of dating today, 11-11-11.

“Today is 11-11-11; Date Can’t Be Written in This Way Again for a Century,” The New York Times, Nov. 11, 1911.

We love sharing these fascinating historical artifacts with you.  We greatly suspect that the writer of this 1911 New York Times piece wondered what we here in 2011 might say about this curious temporal phenomenon.  Imagine that writer in Manhattan a century ago penning this article looking forward a hundred years wondering if we here in this day might look back to his article a hundred years in the past. Mission accomplished!

We’ve previously brought to your attention other fun historical notes like these.  You will remember that last Thanksgiving, we unearthed a 1910 magazine article in which the writer, living in 1910, looked back to 1810 to note the enormous societal changes that had occurred in that century.  At the end of that piece, the writer speculated what we the citizens of 2010 might do to celebrate Thanksgiving.  Last December, we brought to your attention a series of editorials, published in the New York Times in 1931, speculating what the year 2011 might be like.

So, sometimes its fun to abandon true legal blogging for a day and remark upon these fun finds.

A recent decision by the Kansas Supreme Court in Superior Boiler Works, Inc. v. Kimball, 259 P.3d 676 (Kan. 2011) [PDF] highlights the issue of whether or not a party can be held independently liable for the tort of spoliation.  As we all know, a court has the power to grant a wide range of sanctions and/or relief based on a spoliation charge — a charge that a party who had control over key evidence in a case lost or destroyed that evidence.  Indeed, a court can give a party a slap on the wrist, an adverse inference, or even dismiss the complaint of a plaintiff or strike the answer of a defendant.

However, some jurisdictions have adopted spoliation of evidence as an independent tort – a cause of action for spoliation.  Not all jurisdictions have done this – in fact, the Kimball Court held that Kansas has not adopted such a theory.

What’s the law in your state?  South Carolina doesn’t acknowledge spoliation as giving rise to independent actions, either.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  A good starting point for determining the law in your jurisdiction is ALR’s “Negligent Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable” by Benjamin J. Vernia, which can be found at 101 A.L.R.5th 61.

As for the spoliation we are all familiar with, some states have different rules about actionable spoliation depending on whether the destruction was negligent or willful.  A good source of information about the “Intentional spoliation of evidence, interfering with prospective civil action, as actionable” can be found at 70 A.L.R.4th 984.

It’s important to know that, when you or your client is responsible for the loss of evidence, the story may not end with a slap on the wrist–you may be facing an amended complaint or counterclaim that could open your client up to additioanl liability.

Recently, in Osorio v. One World Technologies, No. 10-1824 (1st Cir. October 5, 2011),the First Circuit Court of Appeals affirmed the denial of a table saw manufacturer’s motions for post-trial relief after it was hit with a $1.5 million verdict.  In that case, the plaintiff was severely injured when his hand slipped and slid into the blade of a BTS 15 table saw manufactured by Ryobi.  The saw was equipped with a blade guard and a guiding rip fence, but they had been removed by the plaintiff.  The plaintiff sued Ryobi for negligence and breach of the implied warranty of merchantability.  After an eight day trial, the jury returned a verdict of $1.5 million.  Ryobi moved for judgment as a matter of law and for a new trial.  The district court denied the motions, and Ryobi appealed.

The plaintiff argued the saw was unacceptably dangerous due to a defective design.  To support his claim, the plaintff relied primarily on the testimony of Dr. Stephen Gass.  In 1999, Dr. Gass invented a mechanism known as “SawStop” which immediately stops a blade from spinning when it makes contact with human flesh.   Dr. Gass pitched his product to a number of major table saw manufacturers, including Ryobi, but he didn’t catch any suitors.

Before we go any further, we must admit that we find this scenario perplexing on multiple levels.  First, if SawStop has been shot down by every major table saw manufacturer, Dr. Gass was certainly motivated to stick it to Ryobi at trial.  We can imagine the dollar signs flashing in the plaintiff’s head when he discovered Dr. Gass.  A witness harnessing some beef with the defendant who will also testify to an alternative design?  Sign him up.  Second, if SawStop is so revolutionary, why have all of the table saw manufacturers turned it down?  The plaintiff concocted the conspiracy theory that manufacturers avoided SawStop due to a collective agreement that if any of them adopted the technology, the others would face heightened liability exposure for not doing so.  While it is not in the reported opinion, we hear they also presented evidence that Buzz Aldrin’s moon landing was filmed in a Hollywood studio.

In reality, there may have been a more plausible explanation for not adopting SawStop.  There was some dispute over whether a small benchtop table saw could properly absorb the force necessary to stop a rapidly spinning saw blade.  Ryobi also questioned whether a saw equipped with SawStop could remain portable, a trait necessary for its many contractor customers.  Further, the addition of SawStop would nearly double the cost of the saw.  If that is not enough, Dr. Gass actually testified that SawStop’s flesh-detection system could be erroneously triggered when cutting wet or pressure-treated wood.  These are all factors that Ryobi, and presumably other manufacturers, considered when deciding between the cover blade or adopting SawStop.

On appeal Ryobi argued that instead of presenting a viable alternative design, the plaintiff

set out to prove that the entire category of lightweight, inexpensive, benchtop table saws to which the BTS 15 belongs was defective, in part because the saws’ manufacturers have not incorporated flesh-detection braking systems into their designs.

The First Circuit acknowledged that “categorical liability” claims are generally impermissible.  However, it noted that the defining characteristic of a categorical liability claim is the  absence of an alternative design.  Admittedly, the plaintiff clearly offered evidence of an alternative design.  Should the alternative design really count when it has been unanimously rejected by the field?  Even though there is that whole lingering conspiracy thing, its not like Ryobi was without reason for rejecting SawStop.  Perhaps the more viable alternative design would be a saw without a removable blade guard a guiding rail – less expensive and doesn’t affect the integrity of the saw.  Crazy theory, but then what would the plaintiff had done with his star witness?

I just got a new car.  Well, new to me, but not brand new.  It’s equipped with all sorts of cool features that my old car, which my parents bought for me in college, doesn’t have.  Cubby holes everywhere.  A moonroof.  Volume and channel controls on the steering wheel.  Although it’s barely been cold enough here in Greenville, South Carolina to use them, my favorite feature is heated seats (with two settings, nonetheless).

Yes, my new car is very well equipped with features that, while certainly not critical to the car’s function, make driving it a nicer, easier experience.  There is a new car on the market, however, that puts all of these features to shame — the new Buick Verano has a headrest that is designed to accommodate ponytails!

That’s right — as reported by USA Today, the headrests in the new Buick Verano are designed so that “someone with a ponytail or other big hairdo [won’t] feel like their head is being pushed forward.”  A marvel of engineering.  Yet the design still complies with federal safety standards, which mandate how close a person’s head must be to the headrest.

This new feature made me wonder how many of the features in my car had to be worked around federal safety standards to provide the convenience that they give me.  I wonder if they regulate the temperature of my heated seats?  A quick search of the Federal Motor Vehicle Safety Standards didn’t come up with much, but I bet it exists somewhere.  After all, if a cup of hot coffee can get a company in hot water, I imagine a set of too-toasted buns could do the same.

In the wake of Steve Jobs’ death, Apple investors and fans could use a little good news.  Well, they recently received some, in the form of two rulings against Samsung. On October 18, The Sydney Morning Herald reported that a federal court in Australia had granted Apple an injunction against Samsung, preventing Samsung from selling its tablet device “Galaxy Tab 10.1” in Australia.  Apple alleged that Samsung infringed on “two of its patents relating to touch screens and the gestures that control them.”

As the article points out, this suit says a lot about the two companies, especially about Apple’s perception of the Samsung device as a true competitor to its iPad.  It also puts Samsung in a difficult position with the holiday shopping season — a season that retailers would like us all to believe starts on Labor Day this year.  For its part, Samsung’s statement in the aftermath of the ruling makes reference to the fact that it has filed a cross claim against Apple, alleging a violation of Samsung’s wireless technology patents.

Here in the United States, Samsung is also running into IP trouble with its Galaxy tab.  As reported by Reuters, after the ruling in Australia came out, “Apple then filed a request in July to bar some Samsung products from U.S. sale, including the Galaxy S 4G smartphone and the Galaxy Tab 10.1 tablet.”  A U.S. District Court judge ruled that the Galaxy infringes on Apple’s patents but, interestingly, also stated that Apple is having troubles establishing the validity of those patents.

We would have loved to be at this hearing.  Reuters’ article gives this little tidbit about that proceeding, which was undoubtedly not good news for Samsung’s attorney:

At one point during the hearing, she held one black glass tablet in each hand above her head, and asked Sullivan [Samsung’s lawyer] if she could identify which company produced which.

“Not at this distance your honor,” said Sullivan, who stood at a podium roughly ten feet away.

“Can any of Samsung’s lawyers tell me which one is Samsung and which one is Apple?” Koh asked.  A moment later, one of the lawyers supplied the right answer.

Ouch.  Not a good few days for Samsung.