Tonight, plaintiff’s attorney and documentary filmmaker Susan Saladoff will appear on “The Colbert Report” on Comedy Central, which airs at 11:30 p.m. Eastern and 10:30 p.m. Central. Presumably, she’ll be promoting the imminent DVD release of her “Hot Coffee” documentary and sharing her objections to tort reform. You might recall – because we mention it quite frequently – that we have more than a passing interest in the Stella Liebeck McDonald’s Hot Coffee Case and Ms. Saladoff’s documentary on same.  Not only did we review Saladoff’s “Hot Coffee” documentary when it aired on HBO this past summer, we also chronicled Ms. Saladoff’s background as a prominent plaintiff’s attorney back in January when the documentary premiered at the Sundance Film Festival.  We look forward to seeing her on “The Colbert Report” tonight and seeing what she has to say about tort reform generally and the Liebeck case specifically.  We are particularly interested to see how the character Stephen Colbert plays on his show will grill Ms. Saladoff on her opinions and litigious background.  Rest assured that our writer Nick Farr is on the case and will be burning the midnight oil tonight to offer his commentary to you first thing tomorrow.  Because Comedy Central typically posts these interviews online shortly after their original air date, we will also try to embed or otherwise link the video so you can watch it yourself. We are looking forward to it and will keep you posted. (Hat Tip: Albuquerque Journal).

We here at Abnormal Use will be well represented this year at the 2011 DRI Annual Meeting, held this week,  October 26th-30th at the Marriott Wardman Park Hotel in Washington, D.C.  Not only does our own Stephanie Flynn plan to be in attendance, but multiple other members of our firm will attend as well.  This is not surprising given the broad appeal of the DRI Annual Meeting, which will include discussions on substantive practice areas including, of course, products liability.  Not only will there be some high profile speakers on the agenda, but as always, the event is a good place to learn the tricks of the trade and meet the movers and shakers within the DRI organization.

The DRI’s Products Liability Committee will host a business meeting and substantive CLE program, which is scheduled for Friday, October 28th, from 8:30 a.m. – 10:30 a.m.  The CLE will address strategies for handling the defense of aggregate consumer fraud claims, particularly the requirement that each plaintiff establish individual causation, a traditional rule that some courts have not applied in such suits.  Our own Stephanie Flynn, as the Annual Meeting Liason for the Toxic Torts & Environmental Law Committee (TTEL) will cover the business meeting and introduce the CLE presentations given by the TTEL.  Alas, the TTEL is scheduled at the very same time as the Products Liability Committee’s presentations, so Stephanie won’t be able to make it to both.  Other blockbuster presentations include such topics as the over-criminalization of business conduct by the government (something felt broadly across the business spectrum and in a wide array of industries), technological changes in jury trials in the 21st century; and, most intriguing, the implications of genetic mapping to determine individual susceptibilities of exposure to products or toxic substances.  These events will be followed by multiple networking opportunities, including a networking reception at the Newseum, the world’s most interactive museum!

Just in time for Halloween, we bring you the cover of The Witching Hour #51, published way, way back in 1975.  “Bring in the prisoner to face his judge and jury!” exclaims the skeletal judicial figure, while a menacing skeleton jury awaits.  We think this poor criminal defendant may have some constitutional arguments here (although we have our doubts as to whether this trial judge will sustain any such objections). And if this is the trial court judge, we’d hate to see the appellate panel!  Don’t forget, we’ve featured some other tough comic book cover juries here, here, and here.

Begins this recent piece in the Salem Eagle Tribune: “A Salem Superior Court jury has ordered Toys ‘R’ Us to pay more than $20 million to the family of a young mother who died five years ago after an inflatable pool slide sold by the national chain partially collapsed while she was using it during a pool party in Andover.” (Hat tip: Eric Nordstrom).

J. Benjamin Stevens, a/k/a The Mac Lawyer (who practices just down the road in Spartanburg, SC), appeared on the Lawyer2Lawyer podcast to discuss the impact of Steve Jobs on the legal profession.  To hear the podcast, click here.

Our own Stuart Mauney directs us to this piece in the Wall Street Journal Law Blog regarding alligators and the doctrine of “animals ferae naturae.” It’s probably been a while since you’ve referenced that legal doctrine in a brief, right? Yikes.

Our friends at The Law and The Multiverse are considering starting a second blog to discuss the application of law and legal principles in non-comic book fiction.  For more information, see this post (which includes a reader poll).

Don’t forget; you can become a fan of Abnormal Use on Facebook by clicking here! And we’re on Twitter here!

The South Carolina Supreme Court has implemented a new electronic attorney registration program, called the Attorney Information System (AIS).  Starting this week, each licensed  South Carolina attorney and foreign legal consultant will receive materials from the Chief Justice containing information on this new endeavor. It is expressly designed to pave the way for electronic filing in the state court system in the future. For now, the DUI law firm serving Manassas requires all South Carolina attorneys and foreign legal consultants to register over a secure web portal and provide updated contact information to the Court going forward. Based on the article source the receipt of the aforementioned correspondence (which includes an initial user name and password), attorneys should follow the instructions, use the login information contained in the letter to log into the system, check one’s  personal information, and note any changes to be made. These steps must be taken by November 18, 2011 as per the terms of the Supreme Court’s order on this matter. Caveat: any attorney who fails to  log in before license renewal will not be permitted to renew. To see the court’s order and news release, click here.

For nearly 20 years, the story of the New Mexico woman awarded millions of dollars after burning herself with McDonald’s hot coffee has been a fixture of litigation lore.  To many, the case is an example of the need for tort reform.  To others, it represents a success of our tort system.  But what really happened in the Stella Liebeck McDonald’s hot coffee case?  Why has one cup of coffee prompted so much discussion of our litigation system? Well, guess what? You can now learn the answers to those questions from us – on a brand new live CLE webinar tomorrow!

As you know, we here at Abnormal Use have written extensively on the McDonald’s hot coffee case.  We have presented you with an extensive FAQ file on the litigation.  We have offered our review of Susan Saladoff’s recent Hot Coffee documentary.  We continue to keep you apprised of news on the hot coffee litigation front.  Our work on this subject has been cited by both NPR and The New York Times.  Now, dear readers, we are pleased to announce that Abnormal Use is set to give you hot coffee news like you have never seen it before – live over the interwebs!

So, here is your chance to finally interact with us in real time on this controversial topic! Tomorrow, on Thursday, October 20, 2011, we will present an online CLE webinar on the Stella Liebeck McDonald’s Hot Coffee case.   Due to the amount of comments on our hot coffee posts, we know you would relish the opportunity to hear our presentation and pepper us with your comments and questions.

The webcast – sponsored by Thomson Reuters – will be conducted tomorrow from 10:30 am – 11:30 am (EST) and has been approved for CLE credit in about 40 states.  You can sign-up here.  The cost of the CLE is a mere $135, and participants will be provided with course materials (prepared by your friends at Abnormal Use), an hour-long audio presentation, and the opportunity to submit questions to us during the webinar.

Some familiar names from Abnormal Use will be presenting, including Nick Farr and our editor, Jim Dedman. To show that this webcast is kind of a big deal, we have also called in Gallivan, White, & Boyd, P.A. senior partner Howard Boyd to offer his wisdom on the subject matter.

We hope you’ll be able to join us tomorrow. If you can’t make it, you can always listen to the presentation – and earn CLE credit – later by accessing the presentation in the Thomson Reuters/West Legal Education webinar archive at your convenience.

You can access all the information about the webinar here.

Halloween is just around the corner. And so it’s only fitting that Abnormal Use should take a moment to appreciate products from a spookier perspective. For your reading enjoyment, we present the following Top 6(66) haunted / possessed products, currently available at eBay. Who knows if they will lead to products litigation?

Number 6: Possessed / Haunted Ouija Board

Item No.: 280754565708
Price: $89.00
Bids: 0
Returns: 3 Days / Money Back

Ok, confession time. I have never personally played with a Ouija Board. But I have been present when Ouija Boards were broken out and played with. They blow my mind. I don’t understand them, and for the few times I’ve been present, there is no way the participants were moving the planchette. Also, I was way older than I should have been when I learned that Ouija was not spelled Weegee. Color me embarrassed.

Anyway, the reputation of Ouija Boards precedes them. Which should make for an easy sale of the Ouija Board at issue. Not so. As with most products, when it comes to making a sale, the art is in the pitch. Here, the pitch is lack-luster. The Ouija Board is allegedly possessed by the spirit of the seller’s friend’s dead husband. Yawn. We need more! Did the dead husband die a violent death? Was he involved in a murder / suicide? Did he get sucked into the Ouija Board by some spiritual accident? To justify dropping $100 on this board, I need to know more than the fact that some chick’s dead hubby is hanging out in limbo carrying on casual conversation with the living through a board game. Does he also haunt Scrabble? Or checkers? How about when the wife dies? Will she haunt Bunco? So many loose ends.

Also, as a final observation, if you’re going to sell something haunted / possessed, you really shouldn’t have a return policy. The cache with selling items of paranormal personal property is that you want them gone. It’s hard to maintain your credibility if you’re willing to offer a money back guarantee to folks who are not pleased with their haunting experience.

Number 5: “Paranormal Lucky Rabbit’s Foot”

Item No.: 150676485777
Price: $49.99
Bids: 0
Returns: Not Accepted

This item is exactly what you think it is. It’s a pink, fuzzy, rabbit’s foot key chain. Nothing spooky about that. Except that this key chain is “possibly haunted [or] possessed.” For $49.99 it better be! A regular, un-haunted, un-possessed rabbit’s foot key chain retails on eBay for $2.99. What on earth (or beyond) allows this particular item to command the paranormal premium? Unfortunately, the seller has no idea. By his own admission, he’s “unsure” of how to access the lucky aspects of the charm or “[h]ow they are brought about.” There’s not even a spooky story to go with the sales pitch. So, we’re left with an item that may or may not be haunted / possessed; and even if it is, there’s no user manual to tell us how to get at that dirty black magic.

So whose fault is that? According to the seller, it’s your own fault. “This item is only for the believers and enthusiasts of the paranormal world.” In other words, if you buy the item and you don’t have good luck, it’s user error. You’re not a true believer. And if you are a true believer, our seller asks, “[h]ow much is luck worth? Hundreds, thousands, millions? I wouldn’t know, but I’m going to start this auction at only $49.95.” The fact of the matter is that if the seller is able to pass off a rabbit’s foot at $50 apiece, he needs to hold onto it.

The more important question here is what haunts the rabbit’s foot? The seller never tells us. We can only presume it is the ghost of the rabbit that the foot used to be attached to. And if that’s the case, the rabbit was never really that lucky to begin with.

Number 4: Items from the Krausemueller Estate

Item 1: Haunted Possessed Devil Doll from the Gates of Hell
Item No.: 360401339932
Price: $999.00
Bids: 0
Returns: Not Accepted

Item 2: Haunted Spirit Possessed with Scrying Mirror–the Power to Alter Your Future!!!!
Item No.: 360401338813
Price: $499.00
Bids: 0
Returns: Not Accepted

These items get instant spooky-street cred just for the fact they are shipped from the “Krausemueller Estate.” In terms of frightening languages, German ranks right at the top. In fact, I will go so far as to say that German should become the official language of Halloween. For instance, compare and contrast: Trick or Treat vs. Suesses oder Saures. A kid that screams Trick or Treat has done just enough to earn a fun-size Snickers. A kid that screams Suesses oder Saures will have candy heaped upon him by frightened homeowners as “protection” from their homes being destroyed by Blitz-Saures.

But I digress. Additional respect goes out to the Krausemueller Estate crowd for teeing up their products with elaborate stories. The Devil Doll is alleged to cause visions of children being tortured. The scrying mirror . . . . well, I had to Google that. Apparently, scrying mirrors are used as media for psychic visions. The best example of this in popular culture is the game Bloody Mary. Anyway, the Krausemueller Estate has lengthy stories of how they came into possession of these demonic toys. It’s a fun read if you’re into that sort of thing.

Number 3: Haunted Paranormal Metaphysical Demonic Entity Possesses Doll Wicca Occult Djinn

Item No.: 330618918480
Price: $169.99
Bids: 0
Returns: None

Immediately, the prospective buyer is greeted by creepy music. That’s a subtle, yet classy touch. Additionally, the seller pitches his product with a pretty good story, which is appreciated. The story is even Halloweeny enough: “Over 20 different sounds have been heard that are very unearthly and rather demonic in nature.” But as you read on, you learn that the entity possessing this doll is not so much demonic in nature as he is just downright immature. “[The doll] likes to make obscene noises that resemble flatulence. No odours [sic] were noted.” Well that’s good news. Basically, this “demonic doll” is just the re-incarnation of the Ghost of College Roommates Past.

This seller adds a nice touch though. He includes a product warning and disclaimer of liability. “By bidding on this auction, you agree that the seller is not responsible for any paranormal activity that may or may not occur once the item is yours. . . . The law states that paranormal and metaphysical items are to be used for entertainment purposes only. We will not be held responsible for any result or activity which may arise.”

We’re not exactly sure of what law he’s referring to regarding disclaimers of paranormal and metaphysical activity. But if this whole selling evil dolls thing doesn’t work out, maybe he’s got a bright future in practicing law. There’s probably a niche for drafting paranormal or metaphysical contracts. The downside is that’s probably how he’d be paid, too.

Number 2: Haunted Vampire Doll Possessed with 3 Succubus Spirits!

Item No.: 187736191669
Price: $121.00 (Buy It Now for $227.11)
Bids: 0
Return: 3 Days / Merchandise Credit

Immediately upon opening the product description site, you know you’ve made a good choice coming here. Haunting music starts playing, and the first text you encounter is: “Warning: Never has there been a doll this active!!! If you cannot handle the doll, you must destroy it.” What’s so awful about this doll? Well, there’s a host of side-effects of doll-ownership that I can’t list because they are too crude for this website, even by my low standards. Here’s just a taste: “Do [other dolls] make you sleep walk and eat raw meat, even squeeze blood from a steak and then put in a glass to drink? . . . . You will feel this doll, hot and cold spots, have psychic communication, erotic visions, as well as poltergeist activities.” For other, more descriptive, hilarious descriptions of side-effects, I strongly encourage you to go check out the product page.

The descriptions alone would justify the high ranking on this very definitive, authoritative list. But there’s also good customer service. The seller provides specific product instructions on what to do if you do not want the evil doll / trio of succubi in your life. “You must wrap [the doll] in a white cloth and surround her with the sea salt I will send along.” Seems arbitrary, but if it’s effective, who am I to judge? Also, Holy Water is included in the price of purchase. Seriously.

Update: We could not link to this page because it appears to have been taken down.  Let this be a lesson if you’re thinking about selling vampire erotica on eBay.  You people know who you are.  And I’m talking to you.

Number 1: Coconut Wood Rings

Item No. 1: Powerful Revenge and Unlimited Wishes Granted
Item No.: 110757656824
Price: $18.00
Bids: 1
Returns: 3 Days / Exchange Only

Item No. 2: Basilisk King Possessed Haunted Ring Extreme Protection–Grants Unlimited Wishes
Item No.: 110757657338
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

Item No. 3: Succubus Demon Possessed Haunting Ring Alters Your Body–Does Grant Endless Wishes
Item No.: 220875341981
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

Item No. 4: The Real Oni Demon Possessed Shapeshifter Power Haunted Ring of Unlimited Wishes
Item No.: 370549777273 / 250908436558 / 250908442903
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

If there were such a thing as the Crazy Scale, these items would bury the needle. Despite having different names / auction numbers, each of these items is the same: it’s a purple misshapen ring made out of coconut wood. The beauty of this product (and the reason it ranks so high on the list) is because of the descriptions. Sometimes, the ring derives its power from the great Egyptian Sphinx. Sometimes, the ring’s power comes from the lost Mayan city of B’aak. (If you’ve never heard of B’aak, don’t worry about it. Neither has Google.) Still other times, the power comes from a cult of Japanese cosmologists. Whatever, who cares where it comes from? The point is what these rings can do. Which is everything that is awesome.  These rings will: (1) improve happiness; (2) improve sexual performance; (3) convey the secret of invisibility; (4) allow powerful revenge; (5) heighten your senses; (6) make you famous; (7) make you rich; (8) alter your physique; (9) increase your psychic ability; (10) allow you to summon genies and ghosts; (11) provide endless protection against all evil; (12) provide intense good luck; (13) allow attractiveness to radiate from your very soul; (14) prevent you from overeating; (15) slow the aging process; (16) give you a more positive outlook; (17) help you be aware and watch out for traps; (18) allow you to defeat your enemies; (19) ensure victory against all odds; and–I kid you not–(20) provide booty enhancement.

Now, I know what you’re thinking. If you had a ring that could allow you to conquer everything and give you a booty enhancement, why would you price it under $20? Why not charge, oh I don’t know, a bajillion dollars? The sellers will have you know that their religion of Sphinx worship / Japanese star-gazing / Mayan BS prevents them from charging unholy amounts of money for sharing secrets of universal success. These folks are like the Franciscan Monks of gawdy trinkets, taking a vow of poverty to bring you products that look bad and do nothing.

It also doesn’t help that according to the product information page, the rings are shipped from either the Planet Kashyyyk (which is where Chewbacca and other Wookiees from the Star Wars universe come from) or Enhasa (which is a city that exists only in the Super Nintendo game “Chrono Trigger,” circa 1995). I wish I were making any of this up.

For my coup de grace, I leave you with my favorite of all the haunted Halloween products. It is yet another coconut wood ring, the Haunted Ring Oni Demon Possessed Regaining Girlfriend / Boyfriend Wild Monkey Love.

Item No.: 370549773877
Price: $14.00
Bids: 0
Returns: 3 Days / Exchange Only

As with the other coconut-job rings above, this ring is powered by the Sphinx / Mayans / aliens / Illuminati / Atlantis. Among other things, this ring will: (1) allow you to regain lost love; (2) give you more money; (3) open a portal to the spirit world; (4) get you the man / woman that you want to love forever; and most incredibly (5) heal brain tumors.

In terms of product liability, there’s a lot of take-aways here. If you’re going to sell a piece of demonic property, it’s a good idea to include an appropriate warning and a disclaimer of liability. That way, when your evil doll comes to life and goes on a homicidal rampage, you can tee up assumption of risk as an affirmative defense. They can’t say you didn’t warn them! Perhaps the most important lesson is summed up in the phrase “Caveat Emptor,” especially when you consider its modern corollary from P.T. Barnum, “There’s a sucker born every minute.”

Now if you’ll excuse me, I have some Christmas shopping to do. Rings and dolls for everyone. Happy Halloween to all. Seusses ober Saures!

Last month, the thriller Drive starring Ryan Gosling opened in theaters nationwide.  From what we can discern from the film’s trailer, its follows a Hollywood stunt driver and his perils following some dirty-handed contract work.  For those who need a touch of romance alongside their action, the driver falls in love with the married woman whose family he entered the contract to protect.  Or something like that.  We here at Abnormal Use have not seen the film, but we think it looks somewhat entertaining.  One litigant, however, wants her money back.

A Michigan woman has filed a lawsuit against the film’s distributor, FilmDistrict, and the Michigan theater in which she saw the film, seeking a refund of her ticket price.  Yes, we know it sounds absurd to accumulate legal fees and court costs over an $8 ticket.  The movie can’t be that bad, right?  After all, it did gross nearly $12 million (with a $15 million budget) during its opening weekend.  If people can sit through three hours of The English Patient without feeling the need to sue its distributor, Drive must be horrible. Oh, and here’s the best part: She wants to certify the suit as a class action!

What could possible make Drive so horrendous that a federal class action lawsuit becomes necessary to save cinema goers from seeing it?  According to the lawsuit, the woman claims that FilmDistrict marketed Drive as being very similar to The Fast and the Furious when, in actuality, the film “bore very little similarity to a chase, or race action film . . . having very little driving in the film.”  Oh, the horror!

After you have regained your composure, let’s take a closer look at these allegations.  First, is the plaintiff really claiming she has been damaged because Drive did not meet the high standards of The Fast and the Furious?  Seriously?  While Fast was the career high point for both Vin Diesel and Paul Walker, it is a movie that can only be enjoyed along side a $3 bottle of gas station wine.  Claiming that a movie is dissimilar to Fast should be considered a compliment.  If the plaintiff claimed she had been duped into watching a pseudonymous Fast sequel, we would feel her pain.  After all, the fact that five Fast films have already been made is a grave injustice to the film industry.  But the fact that the plaintiff is actually complaining that the move is not like Fast is beyond our comprehension.

Second, even if we assume Fast has some cinematic merit, was Drive really trying to market itself as such?  Take a look at the Fast trailer from 2001. To the plaintiff’s credit, there are a lot of similarities between the two trailers.  Both have cars.  Both show people kissing.  Both have dramatic music as a background.  We can see how the plaintiff might see a resemblance.  Despite all these similarities, however, the movies are not marketed as one in the same.  In the Drive trailer, it is apparent that the movie has some story line.  After watching the Fast trailer, all we know about the film is that the actors do something in cars, and they like to do it fast.  Of course, it was probably hard to reveal a plot in the Fast trailer considering the film’s utter lack thereof. Oh, well.

Superman appears to be cross examining Lois Lane on the cover of Superman’s Girlfriend Lois Lane #100, depicted above and published way, way back in 1970. “Lois, do you deny having had this fight with Lana Lang?,” asks Supes, as he holds a photograph of Lane fighting Lang. “And after it you killed her – in cold blood?” he exclaims. Lois replies: “No! No! I’m innocent!” Meanwhile, a police officer notes that the lie detector needle “jumped like crazy” and that Lane will be executed. Uh, first off, we don’t think that polygraph evidence is going to be heard by the jury. However, we suspect that this scene may be illustrative of some deeper problems that Lois and Supes are having in their relationship. Back in April 2010, we showed you the cover of Superman’s Girlfriend Lois Lane #99, which shows Lane on trial for this very crime. And earlier this year, in May, we showed you Superman confronting convict Lois about another series of crimes and her resulting imprisonment. What’s up with all that?

Bill Latham at The HyTechLaywer Blog alerts us to a campaign by Nancy Patterson of litigatortechnology.com to create a “Legal” category in the Apple iTunes App Store. Not a bad idea, that. As Patterson notes, there is a medical category, so why not a legal one? There’s certainly lots of legal apps. See here for more information.

Just when you thought Steve McConnell of the Drug and Device Law blog had topped himself with his post a few weeks back citing Nirvana, R.E.M., and The Beatles, he outdoes himself yet again. This past Monday, McConnell summarized a new Southern District of Ohio pain pump case using George Harrison song titles as a handy gazetteer. See here for the full post. (Although, we do wonder about the absence of “Got My Mind Set on You.”).

It’s off-topic for a law blog, but you might want to read this post The Signal Watch explaining why the author hates, above nearly all other things, talking about music. We are crestfallen.

Don’t forget; you can become a fan of Abnormal Use on Facebook by clicking here! And we’re on Twitter here!

As lawyers, we are prickly curmudgeons with respect to definitions, and all of the talk this year about documentary filmmaking prompted much disdain on our part over the use of the term “documentary.”  That word suggests some type of objectivity; Merriam-Webster’s online dictionary uses words like “factual” and “objective” in its definition.  A documentary filmmaker takes his or her camera to the scene of a series of events or profiles a particular person or persons and provides the most objective view of the subject of the film.   A documentary film is successful, we think, when both the subject of the film and those who are critical of the film’s subject matter agree that it is an accurate representation.  Thus, that factual and objective depiction – complete with the proper context – can prompt serious debate and discussion about the events depicted without falling victim to cries of bias, improper editing, or other editorial tricks of the trade.  But that’s not what documentaries do these days.  Just this year, we’ve written about would-be documentaries by Plaintiff’s lawyers advancing a litigious agenda (that being Susan Saladoff’s Hot Coffee) and disgruntled former litigants making films advocating tort reform (that being Brian J. Kelly’s InJustice.). These are filmmakers with agendas; they seek to convince viewers of a point and call them to action.

These are not documentarians; they are editorialists. There is, of course, a place in film for subjective editorializing, just as there is a place in a newspaper for an editorial and op-ed page. Heck, we here at Abnormal Use engage in editorializing every day and would not purport to be objective reporters of fact (unless we tried really, really hard to do so and specifically made that claim).  However, we do not generally bill ourselves as reporters or documentarians, and thus, we free ourselves of the constraints of journalistic objectivity.

We think that Saladoff, the former trial lawyer and producer of Hot Coffee, and Kelly, the former litigant and maker of InJustice – are editorialists.  They admit that they have an agenda, and they concede that they are trying to change people’s minds by showing them things they may not have seen before.  Their films are the work of advocates.  Thus, the term “documentary” is misleading when applied to their films, especially in light of  Saladoff’s representation that she is offering “the truth behind the McDonald’s case.”  Saladoff is a plaintiff’s lawyer with an agenda who has turned film maker; Kelly is a citizen who had an unpleasant encounter with the legal system who has a Washington PR firm with Bush administration alumni promoting his film effort. There’s nothing wrong with their decisions to make films to express their opinions about the American civil justice system; it’s just wrong to call them documentaries.

We suspect there would be similar charges of bias if we here at Abnormal Use produced a documentary on the merits of tort reform – the first complaint we would expect to hear would be that defense lawyers at a large southeastern civil litigation firm were attempting to change the minds of potential jurors.  (Kelly faced similar criticism with InJustice, and in fact, those charges of “bias” were leveled against us when we criticized Saladoff’s film). Similarly, we pointed out the potential bias of Saladoff, whose Facebook page explicitly requests viewers to “take action” and write letters to the editor to advance the film’s mission. (We’ve included in this post a few screencaps from the Hot Coffee official Facebook page indicating how the documentary’s producers are calling for actions by viewers – not something you typically see from an objective reporter of facts).  Take a look:

We suppose there is some point where the public is aware that what is presented as a “documentary” is not, in fact, an objective narrative.  Michael Moore became know for such films as Roger & Me, Bowling for Columbine, and Fahrenheit 911, all of which were documentaries, in the sense that they were not narrative fiction, although they certainly had an editorial agenda not implied by the use of the term “documentary.”  There’s always a conservative would-be documentary popping up in response to Moore’s films, as well, but again, those too have agendas. Whatever the case, when the public learns of a new Moore film, they are not expecting an objective documentary. But when an unknown filmmaker like Saladoff or Kelly appears on the scene purporting to expose truth, we must be mindful of the term.

Incidentally, and perhaps ironically, we did attempt to make one objective piece of reporting on this very case.  Please direct your browser to our “Stella Liebeck McDonald’s Hot Coffee Case FAQ” for an editorial–free question and answer session about the underlying facts of the infamous hot coffee case, the trial thereof, and the post trial developments.  We thought it might be helpful if there was at least one place on the Internet where there was an objective retelling of that case using only the original documents from the trial and early 1990’s media coverage thereof.  If you want to learn the facts of the case, that is a good place to go.

In Niemela v. Imperial Manufacturing, Inc., — P.3d —, No. 20100682, 2011 WL 4485978 (Utah Ct. App. Sept. 29, 2011), the Utah Court of Appeals reconsidered a trial court’s grant of summary judgment against a postal worker who sued the manufacturer of mailboxes.  Patricia Niemela delivered mail for the United States Postal Service in a neighborhood in which mailboxes installed by Imperial Manufacturing had been installed.  According to Niemela, the mailboxes were defectively designed and manufactured, allowing them to take on water and freeze when the temperature dropped.  She was forced to use tools to break up the ice, which allegedly caused her to sustain hand injuries.  As noted by the court, Niemela brought claims for strict liability, negligence, and breach of implied warranty against the manufacturer:

In her products liability claim, Niemela alleges that the Imperial mailboxes contained design and manufacturing defects rendering them unreasonably dangerous. She seeks to demonstrate these defects by showing that the mailboxes did not conform to the 2001 USPS regulations, notwithstanding the fact that the mailboxes were designed and manufactured in 1995. Imperial responds that (1) the mailboxes must be presumed nondefective because they complied with federal regulations in effect when they were designed and manufactured, and (2) Niemela has not presented sufficient evidence to overcome this presumption.

The Court of Appeals affirmed the entry of summary judgment against Niemela and reiterated the trial court’s reasoning.  At the time the mailboxes were manufactured, they complied with the USPS regulations.   Citing a statutory presumption from the Utah Code, the appellate court observed:

There is a rebuttable presumption that a product is free from any defect or defective condition where the alleged defect in the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were in conformity with government standards established for that industry which were in existence at the time the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were adopted.

In order to overcome the presumption, the plaintiff must prove by a preponderance of the evidence that the product is unreasonably dangerous.  Niemela could not do so, because her bald accusations about certain aspects of the mailbox were not supported.  In the end, all she had was an allegation that she was injured, and therefore there must have been something wrong with the mailboxes.  It was not enough.