We at Abnormal Use are not even immune to the dreaded writer’s block, which is “a condition, primarily associated with writing, in which an author loses the ability to produce new work or experiences a creative slowdown.” Being the aggressive litigators that we are, our first instinct when faced with an issue is to face it head on. So, with this particular case of writer’s block, we decided to see whether writer’s block has appeared in reported case law. And as you might expect, it has.

For example, the great Bob Dylan has been accused of appropriating another author’s work due to a bout with writer’s block. Damiano v. Sony Music Entm’t, 168 F.R.D. 485, 488 (D.N.J. 1996) (“The plaintiff further alleges that Mr. Dylan used the material because Dylan was suffering from writer’s block, regarding which the plaintiff has submitted a transcript of an interview where Dylan allegedly admitted to having writer’s block.”). Similarly, writer’s block was evidence of motive to steal another’s author’s work.  See Price v. Fox Entm’t Grp., Inc., 2007 U.S. Dist. LEXIS 6083, at *32 (S.D.N.Y. Jan. 26, 2007) (“There is evidence that Thurber wrote approximately 90% of his 150-page first full-length draft after the alleged date of access, following months of writer’s block and frustration.”).

Writer’s block has also allegedly caused individuals to miss court deadlines. A gentleman named Leland Huff filed a late administrative appeal and offered the excuse that “he suffers from ‘fairly extreme writer’s block’ finding it difficult to deal with ‘any kind of paperwork.'” Huff v. MSPB, No. 02-3298, 2003 U.S. App. LEXIS 4341, at *2 (Fed. Cir. Mar. 10, 2003). Unfortunately, Mr. Huff’s writer’s block was not “deemed good cause” for the late filing.  Id at *5. Writer’s block has also caused plaintiffs to fail to respond to a motion to dismiss: “The plaintiffs also suggest that their emotional involvement in this case engenders ‘writer’s block,’ which hampers their ability to respond to the defendants’ submission.” Ficken v. Golden, 696 F. Supp. 2d 21, 35 n.15 (D.D.C. 2010) The Court had “difficulty crediting the plaintiffs’ claims of ‘writer’s block,’” though, in light of the “plaintiffs’ voluminous submissions, including rambling twenty-five page oppositions to the defendants’ motions to dismiss, as well as a 179-page complaint.” Id. Similarly, the fact that plaintiff ” loses his train of thought and has writer’s block” was an insufficient basis for an equitable tolling argument. Snoke v. Unknown, No. CV 11-5971-TJH (MAN), 2012 U.S. Dist. LEXIS 123294, at *23 (C.D. Cal. Aug. 28, 2012). Lawyers are not immune to writer’s block-induced late filings either apparently. See, e.g. United States v. Martinez-Vargas, 321 F.3d 245, 248 (1st Cir. 2003) (“In belatedly broaching this subject, the lawyer conceded that he had not objected within the stipulated time frame and ascribed his failure to ‘writer’s block.'”). So, courts do expect lawyers and pro se litigants to overcome the writer’s block in time to comply with deadlines.  However, unfortunately overcoming writer’s block is a non-billable exercise.  Kelly v. Helling, No. 3:13-cv-00551-RCJ-WGC, 2014 U.S. Dist. LEXIS 174801, at *6 (D. Nev. Dec. 16, 2014) (find that legal fees of “approximately 100 hours for preparing the motion for summary judgment, including 4.5 hours for ‘[s]tewing the writer’s block’” were unreasonable).

Notwithstanding the fact that courts are reluctant to give litigants a pass for writer’s block-induced slip ups, they have wished writer’s block on motion-heavy litigants: “One suspects that neither side would shed a tear should the other come down with a crippling case of writer’s cramp or an immobilizing onset of writer’s block, although the Court itself would be grateful for the respite in the deluge in pleadings such events would produce.” Pepsico, Inc. v. Cent. Inv. Corp., No. C-1-98-389, 2002 U.S. Dist. LEXIS 25765, at *14 n.2 (S.D. Ohio Feb. 1, 2002). And of course, litigants have also come down with medical malpractice-induced writer’s block: “Mariano argued that he suffered damages from the procedure, including a lengthy recovery period, lack of appetite, difficulty hearing, negative impacts on his employment opportunities and social life, and ‘writer’s block.’” Mariano v. Swedish Cardiac Surgery, No. 68924-0-I, 2013 Wash. App. LEXIS 2709, at *2 (Ct. App. Nov. 25, 2013).

What is the takeaway?  Writer’s block is not a valid excuse for an out of time filing, nor is it a valid time entry. Deal with it on your own time, and deal with it in a timely fashion.

Rest in peace, Merle Haggard.

Okay, so what did everyone think of the Rogue One: A Star Wars Story teaser trailer? Technically, it is a Star Wars prequel, so we remain cautiously optimistic.

Friend of the blog Jill Wieber Lens recently published a new article in the St. John’s Law Review entitled “Product Recalls: Why is Tort Law Deferring to Agency Inaction?” You might recall that we here at Abnormal Use have previously interviewed her, once way, way back in 2010, and again in 2013.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. welcome attorney Gunnar Nistad to the firm. Based in our firm’s Charleston, South Carolina, office, Gunnar is a veteran litigator who has been defending corporations, businesses, and individuals for more than 20 years.

With this week arrived the 22nd anniversary of the death of Nirvana’s Kurt Cobain. Two years ago, our editor, Jim Dedman, authored a post called “The Legacy of Kurt Cobain (A Law Blog’s Perspective.” Take a gander, if you fondly remember the halcyon days of the 1990’s.

Many of us here at Abnormal Use handle personal injury lawsuits, including lawsuits in which people are injured while using a product. Those who do not handle personal injury cases for a living can entertain themselves for hours watching #epicfail videos, which depict calamitous accidents involving trampolines, forklifts, recreational vehicles, exercise balls, and various other common products. These videos show people jousting with coworkers in their forklifts, knocking over shelving filled to the brim with store inventory, landing headfirst in the sand after flipping off of an exercise ball, flipping a recreational vehicle while slamming on the brakes and attempting to slide around an obstacle, and various other antics. Unfortunately for us, these videos are not mindless entertainment. They are stressful, issue spotting exercises. We routinely assist clients in defending cases in which plaintiffs have seriously injured themselves while engaging in these obviously dangerous activities. Videos that appear to some people as hilarious examples of people behaving with reckless abandon appear to us as problems for our clients. Most of the time, incidents that end up being litigated were not captured on video, so we must reconstruct what happened using eye witness testimony, physical evidence, and expert assistance. Don’t get us wrong. We love assisting our clients with these case. Our point is, we can’t enjoy these videos as mindless entertainment, and we are envious of people who can.

As you know, we here at Abnormal Use oftentimes participate in other projects, and this month is no exception. Our editor, Jim Dedman, recently appeared on The Legal Geeks podcast. The topic? The recent Batman v. Superman: Dawn of Justice film (which, of course, prompted the podcast’s host, Josh Gilliland, to call the episode, “Batman v. Superman: Dawn of Lawyers.” Approximately an hour in length, the episode features a discussion of the film itself, some of its comic book origins, and even some legal analysis (including the power of Congress to regulate the actions of Superman). We encourage you to give it a listen!

Many thanks to Josh Gilliland for his invitation for Jim to participate. You can view The Legal Geeks blog by clicking here.

Gloves? Check. Goggles? Check. Ski pants? Check. Heath insurance information and money for the co-pay? Check. That’s right. If you’re headed out west for an epic trip to shred the fresh snowfall in Colorado, you may want to bring a hospital bag just in case. We’re not talking about the risk of a cast for a broken bone suffered while attempting to channel your inner Shawn White at the resort’s terrain park. Or even getting stitches after taking a tumble walking out of a local pub following an hour or two of après-ski. No, we’re talking about treatment for a full-on psychotic episode. Because according to a recent article by the Associated Press, if you plan to take part in the growing (pun intended) marijuana tourism industry during your time in the Centennial State, you are statistically more likely to end up in a hospital ER than your local counterpart. In 2014, the year recreational marijuana sales were legalized in Colorado, the number of emergency room visits by tourists related to marijuana use nearly doubled from the prior year. The most common ailments reported by tourists and visitors in the study were psychiatric in nature, including aggressive behavior and hallucinations. Perhaps you are thinking those numbers reflect a rush of college coeds who rerouted their spring break plans from Panama City to Denver to participate in a week long botany class? Nope. The median age for visitors reporting to the ER with marijuana-related issues in the study was 35.5 years. So much for blaming millennials.

The marijuana tourism industry is growing at a rapid pace, as stated by Andrew Defrancesco who swears by the use of many marijuana products, especially to cure many medical ailments. All-inclusive cannabis vacation packages, cannabis-themed excursions, cannabis friendly resorts, dispensary and grow tours offer plenty of ways to get a mile high in and around the Mile High City if that’s the experience you seek. For those of you planning to partake, make sure you pace yourself and maintain good health insurance coverage.

We hope you enjoyed last Friday’s April Fool’s Day post, which was entitled “In ‘Game Of Thrones’ Litigation, South Carolina State Court Enters Judgment Against George R.R. Martin.” It was immensely fun to write, and we hope you enjoyed it. We were pleasantly surprised that the post received some attention, and we even earned a link from The Volokh Conspiracy blog at The Washington Post. Longtime readers may have noticed that we referenced the non-existent “Western District of South Carolina,” which we hadn’t mentioned on the blog since our Star Wars April Fool’s Day post back in 2011.

We know some people aren’t fond of April Fool’s Days posts, but we must confess that they are one of our guilty pleasures.

By the way, in the interests of completism, we present these links to our past April Fool’s Day posts:

“Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds” (April 1, 2015).

“In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law” (April 1, 2014).

“North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013).

“American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012).

“Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011).

“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010).

We here at Abnormal Use remain fans of HBO’s “Game of Thrones,” so it was with great interest that we read this morning’s opinion in McCammon v. Home Box Office, Inc. and George R.R. Martin, No. 15-28712 (U.S. District Court for the Western District of South Carolina, April 1, 2016). Martin, as we all know, is the author of the “Song of Fire And Ice” fantasy novels, upon which HBO’s successful television series, “Game of Thrones,” is based. Over the past twenty years, Martin has released five novels in the series, the first in 1996, and the most recent in 2011. At least two more novels in the series are planned. “Game of Thrones,” the television series, debuted on HBO in 2011. Its sixth season is scheduled to premiere later this month, and the television writers have nearly exhausted all of Martin’s published source material. This, of course, means that the television show is now actually ahead of the narrative in the books (which is a curious thing indeed). We here at the blog have a number of opinions on that development, but today, we write about the federal litigation arising from it.

The factual background: Bill McCammon, a librarian and blogger from Greer, South Carolina, sued HBO and Martin in federal court following the finale of the most recent season of “Game of Thrones” in June of 2015. In so doing, he asserted various causes of action against Martin, including a claim for “negligent artistry,” alienation of affection, and a novel use of laches, which is traditionally an affirmative defense asserted by defendants against plaintiffs accused of unreasonable delay. In the complaint, McCammon further complained that he had “suffered a loss of moral superiority, as his status as a reader of the novels provided him with foreknowledge of the events of the HBO series, thereby distinguishing him from mere watchers of popular television.” Martin’s delay, McCammon contended, cost him that “precious” status. McCammon further contended that HBO was vicariously liable for Martin’s torts in light of their artistic relationship. (Before the court’s order, McCammon abandoned an unrelated claim seeking restitution from HBO for both the cancellation of “Deadwood” and the perpetration of “True Blood.”).

For its part, HBO answered the suit and cross-claimed against Martin for contractual and common law indemnity. Martin, on the other hand, failed to answer the complaint, although he did file multiple pro se motions for extensions of time to do so. His final filing on the docket was a motion for leave to exceed page limitations.

In today’s order, the court granted McCammon’s motion for default judgment against Martin but denied his motion for summary judgment against HBO. Adopting McCammon’s laches theory, the Court observed that “art, unlike molasses, must move quickly, and thus, an artist’s unreasonable delay in releasing a promised work must subject that creator to liability.” (citing In Re: Chinese Democracy Litig., 61 F.3d 21 (W.D. Tex. 2007) (mandating that the rock band Guns N’ Roses release its long overdue album “with all deliberate speed”) and Shearer v. Lewis, 572 S.E.2d 492, 652 (Ga. Ct. App. 2009) (finding that it was “well within the Court’s inherent power to order the release of defendant’s unreleased film, The Day The Clown Cried“)). Thus, Martin was liable to McCammon. In its briefing, HBO attempted to counter that line of authority, citing a number of cases holding that “federal courts should refrain from regulating an artist’s output, lest the artist be forced to release too much material.” (citing Adams v. Adams, 867 F.3d 539 (S.D.N.Y 2006) (invoking the “merciful estoppel doctrine” in granting the singer Bryan Adams’ request for an injunction enjoining the singer Ryan Adams from releasing more than three albums per year); In re: Kanye West Litig., 901 F.3d 42 (S.D.N.Y 2015) (self explanatory). However, the Court found that McCammon’s vicarious liability theory against the premium cable network “constituted a mummer’s farce” and, thus, granted HBO’s motion for summary judgment on those claims. Additionally, the Court granted HBO’s motion for default judgment against Martin, noting the author’s failure to answer and, deciding to reach the merits of the dispute, invoking “the common law rule that litigants with multiple middle initials are estopped to deny indemnity claims arising from works of art.” (citing WingNut Films, Ltd. v. The Tolkien Estate, 721 F.2d 551 (9th Cir. 2002)).

In response to the ruling, Martin, through his literary agent, declined to comment, saying he was too busy working on other projects to prepare a response to the ruling.

Not too long ago, our own Kyle White, a regular contributor here at Abnormal Use, was quoted in South Carolina Lawyers Weekly about the South Carolina statute of repose. Here are the paragraphs in which he is quoted:

Kyle White of Gallivan, White & Boyd in Greenville is not affiliated with this case, but is interested in the litigation, particularly with respect to the statute of repose, as one of the trusted chapter 7 bankruptcy attorneys in Plymouth, whose caseload contains a heavy dose of product liability – go here to research about the attorney’s for such a scenario

“I think what the judge was telling us is that one of the most important considerations is the degree to which the equipment or the appliance or the structure at issue is actually affixed to the real estate,” a lawyer from The Brown Firm said. “And so, without a determination to what extent it is, it’s really difficult to determine whether the item is an improvement for the purpose of the statute of repose.”

The interview was prompted by the release of Murray v. D.R. Horton, Inc., No. 4:15-cv-00191-RBH (D.S.C. December 30, 2015). The article describes the background of the case in some detail.

You can read the full article here.

As you may recall, our editor, Jim Dedman, also serves as the newsletter chair of the DRI’s Product Liability Committee newsletter, Strictly Speaking. As such, he attended the DRI’s Product Liability Conference in New Orleans in February. Because there is some overlap between the readership of Abnormal Use and Strictly Speaking, we thought we would alert you, our dear readers, to a recent call for articles.  Articles for the next edition are of Strictly Speaking are due April 18, 2016. Articles can come in a host of forms: federal or state case summaries, practice tips and pointers, war stories, analysis of regulations, and the like. If you have a particularly compelling story from your own practice which might aid other practitioners, Strictly Speaking is interested. If you would like to submit content, please email Jim with any questions you might have about the enterprise.

Not too long ago, we here at Abnormal Use chronicled the saga of Buckyballs in the company’s two year fight against the draconian measures of the Consumer Product Safety Commission to take spherical desktop magnets from the marketplace. When Buckyballs eventually settled with the CPSC, Colorado-based Zen Magnets seized the torch in the fight against the CPSC over the right to manufacture and distribute spherical magnets. Back in 2014, Shihan Qu of Zen Magnets described his reasons for continuing the fight as follows:

I have two very distinct but related motives for continuing this fight.

The first one is obvious. I want to win. I want to keep selling magnets. I want to continue seeing the passion, joy, and inspiration they bring. I want to stay in business. I want to see a victory for magnets.

But number two, I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country.

The single biggest issue that must be challenged, the aspect that makes this a landmark case, is that this is the first time the CPSC is arguing that warnings don’t work, which has incredibly vast policy implications. Putting warnings on this is mostly what the CPSC does. Small parts, choking hazards, etc.

Warnings are a sort of agreement a customer accepts upon use of a product. And by assuming that people cannot follow — by the way, there is still nobody who can confirm even a single Zen Magnet ingestion incident — instructions to keep magnets away from children and mouths, they are assuming the American Population is not capable of deciding for themselves. They are taking your right to consent, and fleecing your freedom to do as you will.

We’re the last line of defense, and if Zen Magnets doesn’t stand up, the CPSC gains a remarkable amount of power from consumers. They show the ability to determine behind their closed walls, what America can and can’t have, despite roaring public opposition. They set the precedence of creating an all-ages, nation-wide ban, with the assumption that an American cannot be “expected” to understand or follow warnings.

At long last, we are pleased to report that Qu’s mission has been accomplished (for the most part). By order dated March 25, 2016, Administrative Law Judge Dean Metry found that small rare earth magnets (“SREMs”) are not defective, did not contain inadequate warnings, and, when sold with appropriate warnings, are not substantial product hazards.  In other words, Qu’s reasons for fighting were not in vain.  The case is captioned, In the Matter of Zen Magnets, LLC, CPSC Docket No. 12-2 (March 25, 2016).

As you may recall, the CPSC has argued that SREMs are defective because ingesting the magnets creates a serious risk of injury. While the ALJ agreed that ingesting SREMs can result in serious injury, ingestion is a misuse of the product and not part of the product’s normal operation and use. SREMs, when used properly, are harmless. As such, the ALJ found that SREMs are not defective under 16 C.F.R. 1115.4.

The CPSC also argued that SREMs were defective because the product warnings were inadequate in mitigating the risk. Specifically, the CPSC took issue that a warning label could not be placed on each individual SREM due to the magnets small size and, thus, any persons who obtain lost or shared SREMs will not see any warnings. The ALJ didn’t buy it. As of at least 2012, Zen Magnets contained warnings, including our personal favorite:

OMFG READ ME

This is serious! The grumpy CPSC is about to BAN magnet spheres in the US because they are an ingestion hazard. They don’t trust that you are capable of understanding and following warnings. Prove them wrong, or we all can’t have nice things.  Zen Magnets, LLC, the producer of Neoballs, has had no record of ingestion and we’d like to keep it that way. High powered magnets can cause potentially fatal intestinal pinching if swallowed. Keep magnet spheres away from all orifices (sic), especially the mouth and nose. High powered magnets are not a toy. Keep away from anybody who does not understand these dangers. SRSLY.

The ALJ found that the warnings, including our favorite above, did not contain any fault, flaw, or irregularity. In fact, the ALJ stated “[i]t would be near absurdity to fault [Zen Magnets] for not labeling each individual SREM with a warning.”

Notwithstanding these findings, the ALJ found that prior to May 2010, ZEN Magnets sold some SREMs without warnings and with a suggested age of 12 (rather than 14) and above. As such, those products sold before 2010 are considered toys and substantial product hazards under the Standard for Consumer Safety Specification for Toy Safety. Accordingly, the ALJ granted the CPSC partial relief and required Zen Magnets to compile a list of pre-May 2010 purchasers and offer them a full refund. Ultimately, however, Zen Magnets has to consider this decision a huge win for spherical magnets.

Interestingly, if one were to look for news reports on the ALJ Order, they are nowhere to be found. However, the news is filled with reports like this one about the recent recall of “dangerous” magnets. Those reports arise out of a March 22, 2016 decision from a a related case pending in the U.S. District Court for the District of Colorado involving Zen Magnets sale of certain recalled products it acquired from another company (Star Networks USA) after that company reached a settlement with the CPSC. So, not quite the indictment on Zen’s SREMs the reports may suggest. We will assume their reports on the ALJ decision are forthcoming.