On occasion, we here at Abnormal Use write about evidentiary issues, usually pertaining to the intersection of law and science. It is at this intersection that we find conflict, sometimes severe, regarding the standards for admissibility of expert testimony. This area of the law is usually a fertile ground for discussion, and the facts are generally pretty intriguing. And so it goes with today’s post. Let me preach on it.

Recently, friend of the blog Steve Mirsky (of Scientific American fame) alerted us a piece in The Guardian reporting on a court that had refused to allow an expert to testify in the field of mathematics. This piqued our interest, so we decided to look into the matter a little further.

The specific case that Mirsky was referring to was a murder case from England. The prosecution’s theory was that the crime was committed by a person wearing a specific type of athletic shoe whose sole had been worn down in a particular way, leaving a particular type of tread pattern behind. It was alleged that the defendant, coincidentally, had shoes whose sole matched the particular tread pattern. We understand from our friends who practice criminal defense that the legal term for such information is “a really bad fact.”

The prosecution wanted to take the really bad fact a step further. They wanted to call a statistician who would apply a mathematical proposition known as the Bayes’ theorem to the facts of the case. Basically, the Bayes’ theorem is a mathematical expression of common sense. It addresses the probability that a given event could occur given the concurrence of certain circumstantial facts. For example, let’s say that a hit-and-run fatality occurred in South Carolina and all that was known about the suspect vehicle is that it was a gray sports car. As a matter of mathematical theory, it is possible to determine the probability that the suspect car was – say – a Maserati (or any other type of car). Naturally, the more specific factual input that is provided, the less probable it is that an event consisting of all that input could occur.

And that’s probably why the English judge had such a problem with admitting expert testimony about Bayes’ theorem with regard to a criminal case. From the judge’s perspective, the statistician would testify about how improbable it would be that a defendant would have just the right pair of shoes, with just the right sole pattern, as compared to police observations of the murder’s physical evidence. Our common sense would tell us that it’s just too much of a coincidence that the defendant would have so much unusual information in common with the suspect. And that therefore, the defendant must be guilty.

But not so fast. Before we throw the book at someone based on coincidence, perhaps we should ask how many people in the relevant sample (here, England) had the same type of shoes as the suspect? If the answer to that question were 1, then the correspondence of circumstantial evidence about the defendant as compared with the suspect would become more than just a convenient coincidence. However, the further the number moves away from 1, the less relevant the statistical evidence would seem to become. In the case at hand, the number seemed to be in the order of several hundred thousand pairs of the same types of shoes had been sold around England over 10 years. Consequently, it is possible that there could have been tens, hundreds, maybe thousands of the exact same types of shoes with consistent wear patterns.

Let’s be honest about ourselves for a moment. Human nature is susceptible to drawing firm conclusions about truth and innocence based upon the coincidence of circumstances that we believe to be highly improbable based on our common sense. This is especially true when what we believe to be common sense is backed up by “science.” When it comes to statistical evidence, without knowing the relevant sample size, we really can’t evaluate in a reliable fashion how probable or improbable the circumstances are of a given event. And without having that confidence in the statistical testimony to be offered, believing that it is likely to lead to unfair extrapolations of truth and innocence, it is better to simply exclude the testimony altogether. And while we’re being real, if a criminal prosecution comes down to specious statistical evidence, the case was never that strong to begin with.

The analysis of this case reminds us of the famous quip: “There are three kinds of lies: lies; damned lies; and statistics.” Criminal convictions must be based on sterner stuff. There may be room for statistical evidence, and there often is. But statistical evidence must have the same indicia of reliability as other types of expert testimony; otherwise, there is a 100 percent chance that it must be excluded.

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.

Don’t forget: Today is Columbus Day and an official federal holiday.

Accordingly, the post office and federal courthouses will be closed.

STEVE JOBS (1955 – 2011)

We here at Abnormal Use were saddened this week to learn of the death of tech pioneer and Apple, Inc. czar Steve Jobs. We’ve been fans of him for decades, and each day, when we use our iPhone and our iPads, we realize just how much he has changed the way we as consumers, and as lawyers, communicate with each other. Just two weeks ago, we were attending a CLE seminar in Columbia, South Carolina featuring a section called “Using the iPad in Litigation.” Pictured above is the February 15, 1982 cover of Time Magazine, almost thirty years old, showing that Jobs was making innovations even then. (See its Time Magazine Cover Gallery entry here.). Now, today, two days after his death, we pause to reflect upon his life and legacy and how his creations affected and influenced our daily lives.

I myself have had a long history with Apple Computers. As an elementary school student, I used an Apple IIe in computer class to learn the Logo programming language (and, of course, play The Oregon Trail). At home, I first began using an old school Macintosh computer – one of those clunky old boxy ones – in the mid to late 1980s. My mother, a freelance graphic designer at the time, brought one home one day.  Many grammar school homework assignments made their way through that old Mac (though I always preferred to play Shufflepuck Cafe).  Later, in high school, as the editor of the school newspaper, I used Macs to cobble together our monthly publication after school in the old journalism classroom (although staffers would often switch over from Aldus Pagemaker to Sid Meier’s Pirates!).  There was a point where I really, really wanted to buy a NeXT computer, although that never came to be. In college, working in the editorial department of the student daily, I used Macs and the QuarkXPress platform each day to design opinion pages.

Somewhere along the way, though, I reverted back to PCs. Even as a college student, I used a Dell as my home computer. I was a PC user for many years after that. It wasn’t until 2004 that I finally came back into the fold. It was April of that year, and I was in Los Angeles visiting an old friend, Daniel Loyd, who had a new device: a third generation iPod. That day, driving around L.A., we listened to a host of terrible heavy metal songs, simply because we could do so in such an easy fashion. (Dan makes a living as an editor using an Apple computer and Final Cut Pro). Within the week, I had bought my own iPod, and I’ve bought at least four of them since that fateful day in California. I was hooked. Every computer I’ve bought since has been made by Apple, including two successive desktops and a laptop. I’ve gone through three models of iPhones already (and I anticipate pre-ordering the new iPhone 4S sometime today – the first day one can do so). And of course, just a month ago, I bought an iPad, which is one of the most fun purchases I’ve made in many, many years.

With the iPhone, we are able to accomplish with a single device tasks that previously required multiple devices. Remember the old days, not so long ago, really, when traveling out of state, you’d have to take a laptop, Blackberry, cell phone, and iPod? Now, just one Apple product can cover for all of those devices. It’s a marvel. The products make you wonder how you ever lived without them.

What’s the legacy of Steve Jobs? Many have contemplated that over the course of the last two days in pieces far more eloquent than these words here. Really, though, he brought into existence the types of devices we’d previously only seen on Star Trek.

That’s a pretty good epitaph. May he rest in peace.

The last two days have seen many tributes to Jobs from the blogosphere. We would encourage you to take a look at this piece by Jeff Richardson of the iPhone J.D. blog as well as this article by Ben Stevens of The Mac Lawyer blog. Those are two of our favorite Apple-related blogs. We’d also recommend this post from The Rainmaker Blog and this entry from the Associate’s Mind blog.

With the economic downturn gripping the nation, it’s not surprising to learn that recruitment and retention of minority lawyers stalled, or even took a step backward, in 2009. However, there may be some hope yet glimmering on the horizon, both for economic recovery in the legal profession and for minority lawyers in particular, who were hit disproportionately hard by the failing economy. Vault.com, a source for employer rankings, ratings and insight into multiple industries, including the legal industry, has partnered with the Minority Corporate Counsel Association (MCCA), a leading advocate for the hiring, retention and promotion of minority attorneys, to compile and post the results of this year’s Law Firm Diversity Survey. The findings can be perused in the Law Firm Diversity Database, which provides data on over 300 law firms, showing how well firms have been able to develop and sustain a diverse workforce.

The good news is that, while overall hiring remained below 2007 levels, there at least appears to have been some improvement in the numbers as compared with 2010, and firms also seem to have been able to retain more of their attorneys. As for minorities, their hiring and attrition levels returned to pre-recession levels, with the numbers of minority equity partners growing. In fact, the percentage of minority equity partners has grown to its highest rate (6.29 percent) since 2003 when the Law Firm Diversity Survey was first launched. With the never ending barrage of bad news on the economic front, it’s refreshing to learn of some positive momentum, which we hope continues.

Of course, the picture is still not completely rosy. The path to partner status remains an uphill battle for women and minorities, in particular. Rather than promoting from within, more law firms found new partners outside of their own associate ranks through lateral hires. Not only did more firms gain partners via lateral moves but, of those associates who did make partner, the majority were while males. That fact remains despite the ever increasing numbers of women and minorities in the law firm population. In fact, women and racial minorities together have made up more than half of law firm associates over the last eight years. Yet, partnership ranks remain dominated by white males, who make up more than 75 percent of partners and more than 78 percent of equity partners.

We are hopeful that the findings on partnership do not represent a lack of appreciation of the importance of diversity among the law firm ranks. Attorneys attending many of the national conferences, whether they be those sponsored by the ABA, DRI, or other organizations, have no doubt heard diversity presentations.  These seminars  highlight how corporate clients value diversity not only within their own ranks, but in the ranks of any vendors with whom they choose to do business, including their law firms. One message we have heard loud and clear: it is  important to demonstrate diversity by showing who you have on the payroll but also by ensuring that minorities are an integral and active part of the practice. We have certainly found that diversity offers an opportunity to benefit from countless advantages, from new attitudes to increased creativity (just to name but a couple).

We are glad to see that Vault.com and MCCA have continued to closely monitor these developments and will look forward to checking back in after 2011 draws to a conclusion with some optimism that we have continued to move in the right direction.

Last week, I came across news reports from neighboring Spartanburg County about two arrests. One person had been arrested for reportedly discharging a firearm into his house; the other, under unrelated circumstances, for allegedly harassing her neighbors. The common thread between these arrests was that both suspects were allegedly under the influence of the same, unusual drug at the time of their offenses: bath salts. Later in the same afternoon, a friend told me that he had recently fired an employee because she showed up to work high on — what else? — bath salts.

Now, I will be the first to admit that when it comes to being informed about trends among the drug culture, I’m not exactly on the cutting edge. First and foremost, I don’t take baths. I’m more of a shower-man myself. I’m not really familiar with bath salts, even when used as intended. So certainly, I had no idea that bath salts could be used as drugs, let alone that bath salt abuse is becoming a matter of national concern.

At first, the idea of abusing bath salts seems kind of comical. Before doing much research, I assumed that the demographic of the average bath salt abuser was a bored, suburban high schooler who had grown tired of sniffing magic markers and glue. I imagined it was inexpensive, recreational, and ultimately non-threatening. I mean, it’s bath salt. How dangerous can it be?

Turns out, my initial impression was almost dead wrong. I was right about the inexpensive part. The market rate for a hit of bath salts appears to be $20. However, by all accounts, the high is incredibly powerful, and therefore, incredibly dangerous. Common side effects include increased heart rate and blood pressure, agitation, and chest pains that mimic heart attacks. And these are the more pleasant side effects. Other common side effects include delusions, hallucinations, and extreme paranoia, all of which cause the user to experience a form of self-destructive psychosis. For example, there are reports that one user, acting under a psychotic delusion, tried to carve his own liver out of his body with a mechanical pencil. These are in addition to adverse effects to the user’s heart, brain, and kidneys.

Now before you’re tempted to clean all bath salts out of your home, here’s the good news. There are true bath salts and there are dangerous bath salts. Many bath salts are appropriate for their intended use and cannot be used as a cheap high. We’re not talking about those bath salts. By contrast, the bath salts that are the problem – which we will call “dangerous bath salts”  —  are not really bath salts at all. They have no effect if they’re poured into your tub and cannot be used as bath salts. In fact, in addition to being improperly marketed as “bath salts,” the very same dangerous bath salts are sold as plant food, pond scum cleaner, and insecticide (it’s not clear whether these are effective uses or just other pretexts to sell the purported bath salts for a more sinister reason). As a general rule of thumb, if you’re trying to buy real bath salts, you probably can’t buy them at any place that sells dangerous bath salts, and vice versa.

So what makes the dangerous bath salts dangerous? Typically, there are three active ingredients: (1) mephedrone; (2) pyrovalerone; and (3) methylenedioxpyrovalerone (MDPV). These stimulants share many of the same adverse side-effects as cocaine, meth, and LSD. In fact, the dangerous bath salts are generally referred to as synthetic cocaine. These sinister ingredients are not in the true bath salts.

The dangerous bath salts are also of concern because of their easy availability. It is not unusual to find the dangerous bath salts for sale at malls, convenience stores, and “modern” smoke shops (which generally sell no tobacco). And of course, the dangerous bath salts are widely available on the Internet, making their purchase very easy indeed.

The dangerous bath salts apparently burst onto the drug scene roughly seven years ago, making their first wide appearance in European clubs. More recently, as in the past two years, the dangerous bath salts have jumped the Atlantic and taken the United States by storm. States are beginning to prohibit the dangerous bath salts, to the extent they contain any of the chemicals identified above. And effective this first week of October, the federal Drug Enforcement Administration is instituting an emergency nation-wide ban on the same chemicals. Normally, I consider “I’m from the Government, and I’m here to help” to be one of the most alarming phrases in the English language. But in this case of these dangerous bath salts, government action cannot come fast enough.

As if the inherent risks presented by the dangerous bath salts are not disturbing enough, we have the audacity of the manufacturers’ marketing strategy. Many packages of the dangerous bath salts come marked with the phrase “Not Intended for Human Consumption.” It’s easy to find this warning disingenuous.  Since the dangerous bath salts have no bath-related use, we must presume they are intended for consumption.  Other than the disclaimer, we are not aware of any other warnings on the packaging that inform users of the foreseeable adverse side effects of ingestion, such as psychotic delusions, suicidal tendencies, or the urge to carve your vital organs out of your body, even though these side effects are well-known.

Not surprisingly, products liability litigation is beginning to spring up around the country. See, e.g., Vance v. K&B Quick Stop, Inc. et al., 11-C-32 (Lincoln County, W.V.).  It should be noted that under conventional theories of product liability, it is not just the manufacturers of dangerous bath salts who can be sued; it may also be those who are involved in distribution or sales.

The manufacture and sale of the dangerous bath salts complicates the business of the legitimate bath salt industry.  There may be people — kids or other risk seekers — who want to experiment with bath salts, but don’t know that there’s a difference between hygiene-related bath salt and drug-related bath salt.  They may think it’s all the same.  And consequently, they may want to try to ingest legitimate bath salts.  The manufacturers and sellers of those salts must now be mindful of the reasonably foreseeable possibility that their products may be ingested, even though it’s not an intended use, and take precautions against that risk.

Ultimately, we are hopeful that state, local, and federal policy initiatives will stem the rising tide of bath salt drug abuse, and that the use of bath salts can be restored to its rightful and exclusive venue, in the bathroom, right next to our rubber duckies.

On August 9, 2011, the Eastern District of Louisiana approved the distribution of attorneys’ fees following the global settlement of litigation involving Merck’s troubled drug Vioxx in In re Vioxx Product Liability Litigation, — F.3d — , No. 2:05-MD-01657, 2011 WL 3563004 (E.D. La. Aug. 9, 2011) [PDF].    Developed and marketed to treat arthritis, menstual pain and migraine headaches, the drug was approved for sale by the Federal Drug Administration on May 20, 1999.  Merck pulled the drug off the market on September 20, 2004, after a clinical trial found that the drug increased the risk of cardiac incidents like stroke and heart attacks.

As expected, thousands of individual cases and multiple class actions filed against Merck in the aftermath of the recall.  Eventually, those cases filed in federal court were consolidated in an MDL in the Eastern District of Louisiana.  It was estimated that more than 50,000 claims were filed against Merck after 20 million patients took the medication.  After consolidated discovery, several trials commenced before the parties started talking about a global settlement.  Those talks were successful, and a Settlement Agreement was entered.   See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D.La. Nov. 9, 2007), available at http://www.browngreer.com/vioxxsettlement.

The Settlement Agreement gave people the ability to opt-in to resolve their pending or tolled cases against Merck, and the total amount set aside for the payment of claims was $4.85 billion.  With a “b.”  Apparently, according to the August 9 order, the settlements went smoothly from a logistical standpoint:

The Settlement Program proceeded at a very rapid rate and Merck made additional payments in order to ensure that the claimants would receive funds in a timely fashion. . . . [I]n only 31 months, the parties to this MDL case were able to reach a global settlement and distribute Four Billion, Three Hundred and Fifty-three Million, One Hundred Fifty-two Thousand and Sixty-four Dollars ($4,353,152,064) to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. This efficiency is unprecedented in mass tort settlements of this size. It was due in large part to the ability, industry, and professionalism of the attorneys for both sides, the plan administrators, the lien administrators, the pro se curator, and the special masters.

“[A]ny attorney wishing to have their time considered for an allocation of any common benefit award” was directed to submit a three-page written affidavit to the FAC articulating their contribution, with emphasis on factors including “substantial contribution to the outcome of the litigation,” quality of work, “consistency quantum, duration, and intensity of … commitment to the litigation,” “level of partner participation,” committee membership and leadership positions, the “jurisdiction in which non-MDL common benefit work occurred,” “[a]ctivities surrounding trials of individual Vioxx claimants, including bellwether trials and non-MDL trials that impacted proceedings on a common benefit level,” participation in ongoing work for the common benefit, involvement in Vioxx litigation prior to withdrawal of Vioxx from the market or the MDL, contribution to funding of the litigation, commitment to the litigation after adverse verdicts, and any other relevant factors.

My grandfather lived by the adage, “If a product was any good, the company wouldn’t have to advertise.”  As a child, I never knew if he took the saying seriously, or if it was simply a means to justify his incessant channel surfing.  Today, as an adult, I think about his proverb every time I turn on the television.  It is amazing the lengths to which companies will go for a 30-second window in which to pitch their products.  Advertisements make outstanding claims, leading viewers to believe a product is a life necessity.  If all products worked as advertised, we would live in a commercial utopia.  Unfortunately, we can’t believe everything we see.

Recently, the Federal Trade Commission filed a complaint against Reebok International, Ltd. in the Untied States District Court for the Northern District of Ohio regarding advertisements for its EasyTone and RunTone line of athletic shoes.  According to the complaint, Reebok engaged in “unfair or deceptive acts” by representing in both television and print media that

laboratory tests show that when compared to walking in a typical walking shoe, walking in EasyTone footwear will improve muscle tone and strength by 28% in the gluteus maximus, 11% in the hamstrings, and 11% in the calves.

and that

running in RunTone shoes will tone and strengthen the legs and butt more than running in a typical running shoe.

According to the FTC, these allegations cannot be replicated in independent laboratory settings.  You can view one of the allegedly “unfair and deceptive” commercials here.

While we must commend the FTC for promoting truth in advertising, this lawsuit raises a number of issues.  First, if the shoes do not tone and strengthen by 28%, what do they do?  The complaint is silent as to the results of the FTC’s study.  If the shoes only increase muscle tone by 25%, is it really necessary to hold Reebok accountable for false advertising?  Even if the shoes increase tone and strength by a marginal percentage, customers still gain a net benefit versus conventional shoes.  We doubt the average consumer is overly concerned about the exact percentage points.  If the shoes actually decreased muscle tone and strength, then this lawsuit may be necessary.

Second, how have the consumers been harmed by Reebok’s advertisements?  FTC alleges that consumers have suffered from “substantial injury.”  However, the complaint neglects to mention any specifics.  In fact, consumers may have actually derived a benefit from the shoes.  Aside from the aforementioned increase in tone and strength, the shoes may have provided consumers with added incentive to walk or run.  As we here at Abnormal Use can attest, we could all benefit from more exercise.

While the allegedly deceptive advertisement may have had little, if any, effect on consumers, FTC’s complaint had a major effect on Reebok.  Shortly after FTC commenced its lawsuit, Reebok settled with the FTC for $25 million.  As a part of the settlement, the FTC has arranged for those affected by Reebok’s “deceptive act” to request a refund.  In order to receive the refund, consumers are not required to demonstrate a lack of increase in muscle tone.

Was my grandfather correct?  Are advertised products less effective than the non-advertised competition?  While we here at Abnormal Use can not attest for the sufficiency of EasyTone shoes, we do believe advertisements are prone to some embellishment.  As consumers, we have come to temper our expectations. As for Reebok?  Following the settlement, it issued a statement, saying, “Settling does not mean we agree with the FTC’s allegations; we do not.”

This is not an intellectual property blog, although we couldn’t resist sharing the cover of The Adventures of Bob Hope #68, published way, way back in 1961. Hope, the comedian and star of the eponymous comic book series, appears at the Patent Office with a crate labeled “Top Secret,” which he claims contains “the greatest invention ever.” This appears to upset the caveman sitting nearby his own invention, the wheel. Something tells us this is not an accurate depiction of the patent application process as it existed in the early 1960s.

Maxwell Kennerly of the Litigation and Trial blog has a very interesting post on “The Three Types of Practicing Lawyer Blogs.”  He divides law blogs by practicing lawyers into three categories: the mainstream, the personalities, and the marketers.  And guess what? He identified us as an example of a personality blog! Says he: “The personalities are the single lawyer or handful of lawyers who write when they’re inspired, and they’re written with a distinctive voice. These blogs can range from analysis of case law (e.g., Drug and Device Law, D & O Diary) to personal observations about law (e.g., Erik Turkewitz, Associate’s Mind, Day on Torts) to a mixture of both (e.g., China Law Blog, Abnormal Use) . When someone mentions the ‘blawgosphere,’ they’re usually talking about those blogs — not least because those blogs are far, far more likely to link out to other websites and to engage in discussion with one another. ‘Organic’ is an apt description.”  Check out the full post.  In it, Kennerly offers the wisest advice one can give to prospective law bloggers: “Don’t feel compelled to write a particular type of blog; write what you like to write and get good at it, or it will suck and you will hate it.” We just discovered the post last night, and we may offer a more substantive response in the coming weeks.  We love blogging about legal blogging, after all.

Did you know that yesterday was National Coffee Day? We’ve written much about hot coffee lawsuits this past year, but it all began with our Stella Liebeck McDonald’s Hot Coffee FAQ, which we published in January in an attempt to dispel myths about the infamous lawsuit.  In writing the piece, we relied only on the original sources, those being the actual pleadings and motions in the case, as well as some contemporary media coverage of the verdict and settlement from 1994.  To celebrate this week’s National Coffee Day, take a look back at that FAQ here.

Well, I guess we’re going to have to buy new iPhones now.

You’ve got to hand it to Steve McConnell at the Drug and Device Law Blog.  In a post he ran Monday, he begins a paragraph recounting his memories of Nirvana’s “Smells Like Teen Spirit” with a Sgt. Pepper reference! (“It was 20 years ago today,” begins the old Beatles song, and Nirvana’s most famous song appeared on the Nevermind album 20 years ago this month). And the post itself is about a new Seventh Circuit opinion on “the standard of review for a district court’s refusal to permit an amended complaint.”  How did he tie it all together, you may ask? The musical references are to songs with misheard lyrics, while the new Seventh Circuit case is about unintelligible allegations in a pleading.  Nice.

This past weekend was awful. Things started out innocently enough on Friday night. Several of my friends were heading out to celebrate a birthday, and we started out the evening’s festivities with dinner at a restaurant in downtown Greenville. Without naming the restaurant, suffice to say, the main menu item is chicken. I had my usual order of chicken strips smothered in BBQ sauce. We finished dinner, went out on the town, and had a great time. There was no reason to suspect that trouble was brewing. But it was. And it wasn’t just brewing, it was incubating.

I woke up Saturday morning with a sneaking suspicion that something was awry. I couldn’t quite put my finger on it, but I felt that something was amiss. It’s never good when you wake up in the morning and believe that right then, at that moment, that is the best you are going to feel all day long. It’s even worse when your intuition is right. After being awake for 15 minutes, my body informed me that I had brought something home from dinner with me: a friendly little bacteria called salmonella. I’m not going to lie. The next 12 hours were awful. I had chills; I had sweats; I had all the other unpleasant accoutrements of food poisoning.

Now, I feel compelled to say that my stomach is usually not so sensitive to food. I have punished my body with God-awful foods much more often that I should. I have eaten meat straight off a whole cow roasted over an open flame. I have drunk water straight out of mountain streams and lakes. Once, when I was Nicaragua, I stopped at a roadside shack to get an afternoon snack that consisted of a tortilla marinated in unrefrigerated cream. None of these caused any gastro-intestinal distress whatsoever, let alone the distress that I suffered through on Saturday.

How bad was it, you ask? Let me tell you. Before being poisoned by my chicken dinner, my Saturday plan involved taking my girl up to Hendersonville to go apple picking on what turned out to be a gorgeous September day. After that, I planned on watching college football in the afternoon, and then heading to a buddy’s house to play poker and watch the UFC fight. After being poisoned by my chicken dinner, though, my Saturday plan involved laying on my couch praying that I would avoid severe dehydration. Thankfully, I had an excellent nurse to take care of me. And I thought it was only fair that she should have control of the TV. So instead of watching football in the afternoon, we watched “The Golden Girls,” “Project Runway,” and “Teen Dads.” And instead of poker and UFC in the evening, we watched Jane Eyre. Here’s the thing: I was in so much pain I didn’t care. We could have watched “Disney Princesses on Ice” (and probably would have had that been on) and I would have been just as agreeable. My only limitation was that I could not watch any food commercial. It was too much for my stomach to bear.

Now that I’m on the road to recovery, I have spent the last few hours searching for the silver lining to this big, disgusting, dark cloud. It took some looking, but I think I found it. Abnormal Use is a products liability blog. When we think about products liability issues, we tend to think of multi-million dollar cases involving complex, sophisticated machinery. But the world of products liability is much broader than that. In fact, the one product that everyone uses every day and which we probably don’t think about as forming the basis of a products liability claim is the very food we eat. This is probably due to the fact that you never really hear about food-based products liability lawsuits. One reason is a proof issue. In my case, how do I know that my chicken dinner on Friday night caused my food poisoning and not something else I ate, or some other pathogen altogether? Apart from the fact that seeing an ad for chicken sandwiches causes my stomach to turn, I really have no evidence. Another reason for the seeming rarity of food-based products cases is damages. What are my damages? Obviously, the price of the dinner would be compensable; and let’s not forget my pain and suffering. But beyond that, quantifying an amount of damages would be very difficult (apart from the rare case of food poisoning that causes emergency room treatment). And so, between difficulties with proof and damages, bringing a case of this type becomes economically unreasonable.

Regardless, though they may not get as much attention as the types of claims we normally write about, food-based claims are just as much product liability issues as anything else that appears on Abnormal Use. And unless you’re growing and preparing your own food, at one time or another, we have all most likely been potential plaintiffs in food-based product liability claims.