Rest in peace, Nancy Reagan, who passed away earlier this week at age 94. To most of us here at Abnormal Use, she was the first lady in the 1980’s, an era when we were first coming of age and learning about the world. As you know, we often published comic book covers here on Fridays, and even Nancy Reagan made it into the comic book world. Above, you’ll find the cover of Female Force: Nancy Reagan #1, published not so long ago in 2013.

Don’t forget that a new album of Jeff Buckley material is released today. If you’ve not yet investigated it, be certain to listen to the cover of The Smiths’ “I Know It’s Over.”

Gallivan, White, & Boyd, P.A. is pleased to announce that attorney Carson Bacon Penney has joined the firm’s Greenville, South Carolina, office. She will practice as a member of the firm’s Business and Commercial Litigation Group and Workplace Practices Group.

Our favorite legal tweet of late involves the law of wine:

27 USC §207, §205(e) & 27 CFR §4.39(a)(2) make it a federal crime to sell wine with a label that insults a competing wine.

— A Crime a Day (@CrimeADay) March 7, 2016

What can Donald Trump teach us about being better trial lawyers?  Thomas Friedman, in a recent New York Times column, commented that “The voters listen through their stomachs.  If a leader can connect with them on a gut level, their response is: ‘Don’t bother me with the details.  I trust your instincts.’”

Reading Friedman’s column reminded me that jurors also listen with their stomach, or gut. I am remembering the things my law school trial advocacy professor, the late Steve Morrison, might have said: Be prepared. Keep it simple. Do not over-promise. Personalize your client. Tell a story. Ask the jury for what you want. In the end, whatever you do, make a connection, so that their gut tells them that you can be trusted.

Friedman also said Trump “has already gone places no candidate ever has . . . .” As Friedman further noted, Trump may ultimately go too far and “sever his gut connection with voters.” Another good reminder for jury trials: Don’t go too far. Know when to stop.

Thank you, Donald Trump, for teaching us how to be better trial lawyers.

The Nashville jury in the Erin Andrews peephole trial has reached a verdict. The jury has reportedly awarded $55 million. Our recap of the trial leading up to closing arguments is here. After our trial recap post, we had the opportunity to watch the live stream of the closing arguments. What struck us was the Plaintiff’s lawyer’s Reptilian closing. We have previously written on the Reptile Strategy here, here, and here. In the Erin Andrews case, the Plaintiff’s closing argument repeatedly harped on safety rules, safety rule violations, and public endangerment, all of which are tenants of the Reptile Strategy. We also noticed that the damages discussion in the Plaintiff’s lawyer’s closing was reminiscent of the strategy taught in the popular Plaintiff’s lawyer strategy book, David Ball on Damages 3.  That strategy involves tying noneconomic damages to something concrete. Here, the Plaintiff’s lawyer reminded the jury that the video had been viewed 16.8 times over five years and that it would be viewed millions of times in the future. The Plaintiff’s lawyer asked the jury whether it was worth $1, $5, or some other amount every time a stranger was able to watch a video of Erin Andrews without clothes. Our takeaway: This is yet another cautionary tale as to the effectiveness of the Reptile Strategy and the need for defense lawyers to be prepared to defend against it. It will be interesting to see how much Erin Andrews is actually able to collect and whether the verdict will survive any appeal.

The ABA Free CLE Series will present a webinar on suicide prevention on March 21, 2016. Participants are eligible for 1.5 hours ethics / mental health / substance abuse CLE credit. The program will provide education on how to recognize the warning signs of suicide, and effective ways to help those who may be at risk for suicide. Participants will also hear personal stories from lawyers in recovery from depression and other mental illnesses.

The CDC has reported that suicide was the 10^th leading cause of death for all ages in 2013.  There were over 40,000 suicides in 2013 in the United States, at a rate of 1 every 13 minutes. Suicide results in an estimated $51 billion dollars in combined medical and work loss costs. An estimated 9.3 million adults reported having suicidal thoughts in the past year. The percentage of adults having serious thoughts about suicide was highest among adults aged 18 – 25.

We have previously reported on how lawyers are particularly vulnerable to depression and suicide. Almost a third of lawyers suffer from depression. Left untreated, depression can lead to suicide. We can prevent suicide among lawyers by learning to recognize the signs of someone at risk, taking those signs seriously, and knowing how to respond to them.

Our very own Stuart Mauney will be participating as a panelist. Stuart is a mental health advocate and volunteer with the South Carolina Lawyers Helping Lawyers Program.  He is a former member of the ABA Advisory Committee for the Commission on Lawyer Assistance Programs.  Other panelists include Kate Bender, Programming Director with The Dave Nee Foundation, in New York, and Lynn Garson, a lawyer with Baker Hosteltler in Atlanta, Georgia. The moderator will be Terry Harrell, the Executive Director of the Indiana Judges and Lawyers Assistance Program.

Please join us for this important free CLE.

Um, so Kiefer Sutherland is going to be performing live music in Charlotte this year. That’s kind of odd.

We can’t really comment on the Oscars. We can’t say we saw too many of the nominated films. What can you do?

Don’t forget that you can follows us on Twitter at @GWBLawfirm!

Our favorite legal tweet of late comes from our own Stuart Mauney, who recently spoke to the IADC meeting in California. Behold:

Thank you @IADClaw for invite to speak at midyear mtg! #IADCmeetings pic.twitter.com/djqaIJj1rV

— C. Stuart Mauney (@stuartmauney) February 23, 2016

For those who live in a windowless basement with no access to the Internet or television, we are pleased to be the first to inform you that Erin Andrews, well-known sportscaster, model, and reality show co-host, is currently involved in a trial.

Andrews filed suit (see original complaint here) against Marriott International, Inc. and various other defendants in the Circuit Court of Cook County, Illinois in 2010, alleging that the Defendants were all involved in a series of events which ultimately led to Defendant Michael Barrett booking a Nashville Marriott hotel room next to Andrews’ room, surreptitiously obtaining video footage of her nude through a peephole, and posting the video on the Internet. On December 1, 2011, the lawsuit was apparently re-filed in Davidson County, Tennessee, and the Tennessee complaint included a damages demand of $10 million. On October 16, 2015, the Complaint was amended to include a damages demand of $65 million.

The following is a recap of the trial to date.

Day 1 – February 22, 2016

Trial began on February 22, 2016 in the Davidson County Courthouse in Nashville with Judge Hamilton Gayden presiding. Twelve jurors were selected, which included nine women and five men. The judge originally barred media from the courtroom, but the judge reconsidered shortly thereafter and allowed media in the courtroom.

Day 2 – February 22, 2016

Andrews attorney, Randall Kinard, delivered his opening statement, telling the jury that: Andrews suffered humiliation when the peephole videos were posted in 2009. Kinnard pointed the finger at hotel staff for telling Barrett which room Andrews was staying in, and subsequently allowing Barrett to book a room next door to Andrews. Marriott’s attorney, Marc Dedman, told the jury that the stalker was solely to blame for the video and subsequent posting, and that Andrews actually benefited from the incident, because her career thrived thereafter due to the ensuing publicity. The first witnesses were Marriott employees who testified that it was Marriott’s policy not to give out room numbers. However, a call center employee apparently noted that Barrett requested a room next to Andrews, and another employee confirmed that it would not be unusual to accommodate a guest’s request to stay next to another guest.

Day 3 – February 24, 2016

On the third day of trial, Andrews’ standard of care expert testified that Marriott violated the relevant standard of care by identifying Andrews as a guest in the hotel, by not ensuring that guest room door peepholes were secure, and by not providing adequate security. Steve Andrews, Andrews’ father, also testified regarding the emotional damage that Andrews experienced as a result of the incident. The day ended with a former front desk supervisor at the hotel testifying that she was never given a guest privacy training manual, but that she was told not to give out guest room numbers.

Day 4 – February 25, 2016

On day 4, the jury saw the 4.5 minutes of footage.  A computer expert testified that his Internet research suggested that the video had been viewed by more than 16 million people between July of 2009 and January of 2016. Andrews’ therapist provided testimony regarding the emotional damage experienced by Andrews.

Day 5 – February 29, 2016

Barrett testified by video, explaining the process by which he was able to obtain a room next to Andrews.  Barrett also apparently filmed approximately nine other women through peepholes. Andrews took the stand herself on Day 5, testifying about the anxiety that she has experienced, the fear, and the “jeers” she receives at games regarding the video.

Day 6 – March 1, 2016

Andrews’ direct testimony continued into day 6, and her cross examination continued thereafter. A video of portions of her cross examination can be accessed here, but the cross examination touched on, among other things, the benefits to Andrews’ career that resulted from the publicity. The crescendo of the cross examination was the listing of the endorsements that Andrews has picked up since the incident. Andrews rested her case following her testimony, and Marriott then began its case. A talent coach, Patrick Donaher, testified via video deposition that Andrews continued to perform well at her job after the incident. Lewis Kay, Andrews’ publicist and manager, provided similar testimony via video deposition.

Day 7 – March 2, 2016

Stephen Barth, Marriott’s standard of care expert, testified that Marriott did not violate any policies or procedures as alleged.  A former manager of the hotel denied that any rules or procedures were violated, and that the hotel had passed a secret inspection with flying colors three months prior to the incident.  A psychologist who evaluated Andrews testified that she indeed suffered from mild PTSD, but that the symptoms would resolve with treatment. The front desk worker who checked Barrett in on the day of the incident did not recall details, but she testified that she would have checked with Andrews before placing another guest in the room next to Andrews.

Day 8 – March 3, 2016

The defense ended its case by calling former NFL player and ESPN sportscaster, Jesse Palmer. Palmer testified that Andrews did very well in her first game back after the incident and that Andrews received jeers from fans before and after the incident. The defense then rested its case.

Closing arguments will be made on March 9, 2016, and the jury will get the case shortly thereafter.

If you have been following the presidential campaign, you have undoubtedly heard talk about the issue of gun manufacturer liability. Under the current state of the law, gun manufacturers are immune from suit except under special circumstances. With the number of mass shootings in recent years and the press coverage surrounding the lawsuit filed against Remington by the families of Sandy Hook victims, the issue of gun manufacturer liability has understandably been one of the hot button variety. How a person feels about gun manufacturer liability is often co-mingled with the much broader (and often politicized) issue of gun control and the Second Amendment. But, we here at Abnormal Use must ask the question:  How does gun manufacturer liability stand up when stripped away of its political overtones?

To set the stage, today’s issues involve the Protection of Lawful Commerce in Arms Act (“PLCAA”), signed into law by President George W. Bush back in 2005. The PLCAA affords gun manufacturers and sellers immunity in state and federal lawsuits. The immunity, however, is not absolute. For example, there is no immunity in cases in which the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. Proponents of the PLCAA claim that the law is necessary because manufacturers should not be held responsible when a rogue gunman misuses the product. Opponents argue that the law provides manufacturers free rein to market and distribute guns like “assault rifles” that needlessly endanger the public. If you want to buy guns for your protection, with legal support,  Tulster offers a wide selection of concealed handgun holsters. Check them out !

Admittedly, we can understand both sides of the issue. On the one hand, holding gun manufacturers liable for the misuse of non-defective products appears to defy basic product liability principles. Product liability typically rests on three theories (1) defective design, (2) manufacturing defects, or (3) failure to warn. If a person uses a product for a malevolent purpose, but the product is free of defects, then in most instances the manufacturer would be free of liability. If the product is defective and the defect results in injuries, then the manufacturer may be liable. The PLCAA recognizes this and contains an exception to immunity for defective guns. Guns like “assault rifles” are currently legal to sell, own, and possess. In some ways, holding a manufacturer liable for the crimes of others would be akin to holding Cutco liable for a knife attack or Louisville Slugger for an assault involving a baseball bat. On the other hand, guns like assault rifles are different than a kitchen knife or a baseball bat. The AR-15, the gun used in the Sandy Hook shootings, is a military grade assault weapon marketed to civilians. While technically legal, the weapon, unlike a kitchen knife or a baseball bat, arguably is not fit for any reasonable civilian use and needlessly endangers the public.

Josh Koskoff, the lawyer representing the Sandy Hook victims in the lawsuit against Remington, recently stated:

This case is about a particular weapon, the AR-15, and its sale to civilians.  It has nothing to do with the firearms industry as a whole. The AR-15 is to guns what a tank is to cars — uniquely dangerous and not suitable to public use. The AR-15 was designed and manufactured for the military for the purpose of killing the enemy with maximum efficiency. The families’ lawsuit does not contend that Remington should be held liable simply for manufacturing the AR-15. Indeed, Remington and other manufacturers’ production of the AR-15 is essential to the military and law enforcement. But Remington is responsible for its choice to sell that same weapon to the public, and for highlighting the military and assaultive capacities of the weapon in its marketing.

While we do not necessarily agree with all of Koslkoff’s contentions, he makes an interesting argument. What do you think?

Back in 2013, we here at Abnormal Use wrote about a class action lawsuit filed against Subway challenging the restaurant’s “footlong” sandwich claims. The crux of the allegations in the suit was that Subway’s sub sandwiches measured in at just under 12″ long and, thus, were not worthy of the “footlong” label. We questioned the merits of such a suit and were curious as to how it would play out. Now, some two years later, we finally have an answer. According to reports, Subway has reached a settlement in which it will pay $500 to the 10 named plaintiffs. Subway will also spend the next four years placing a “measuring device” in its stores to make certain its subs are, in fact, 12″ long. But, the real kicker is that Subway will also have to pay approximately $500,000 for the plaintiffs’ legal fees.

As far as class action lawsuits against major corporations are concerned, the settlement appears to be pretty light. While the lawyers may have gotten a hefty payday, the plaintiffs only racked up a grand total of $5,000 and, in turn, Subway has to put a ruler in its restaurants. Not exactly world changing for either side.

So, how did Subway get off so cheap? As expected, the case was lacking in the merits department. According to a report from Forbes, testing revealed that the vast majority of the bread was at least 12″ long and any bread that didn’t meet the threshold erred by less than 1/4″. Moreover, the raw dough sticks used to bake the bread weigh exactly the same. The length of the subs varied only due to natural variability in the baking process. In other words, not only does Subway’s sub length largely measure up, the damage the plaintiffs incurred due to any inaccuracies in the bread length is almost non-existent.

Unfortunately, it took two years to reach a resolution to this case lacking in merit. As we mentioned two years ago, a person receiving a sub he/she expects is less than 12″ long could have likely remedied the situation simply by asking for a new bun or even a refund for that matter. After all, Subway makes its subs right in front of the customer and adds toppings at the customer’s direction. Wouldn’t the customer be able to suspect that the sub is short during the process? If not, then would the difference really be big enough to matter? Thankfully, Subway now has rulers, so this will NEVER happen again.

Today is February 29, 2016, which is unusual, because February typically only has 28 days. Apparently, the purpose of a leap year is that “the number of Earth’s revolutions about its own axis, or days, is not equal to or connected in any way to how long it takes for the Earth to get around the sun.” The full explanation is more extensive and exceeds the scope of this post, but it is worth the read for those who are interested. Here, we examine the appearance of the leap year in reported case law.

It should not be surprising that courts have faced leap year related excuses for late filings. A plaintiff has allegedly waived the right to file a discovery-related motion, because the plaintiff allegedly “calendared the due date of the motion as Monday, March 26, 2012, and filed it that day based on a lack of awareness that 2012 is a leap year.” Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357-CIV, 2012 U.S. Dist. LEXIS 56272, at *3 (S.D. Fla. Apr. 23, 2012). Unfortunately, the Court ruled that “[t]his type of error, in and of itself, however, does not provide good cause for out-of-time filing.” Id. A notice of appeal was not timely filed, despite the excuse that “the late filing” was caused in part by the appellant’s alleged “miscalculation of the time due to Leap Year . . . .” Hardman v. Comm’r, No. 08-1118, 2008 U.S. App. LEXIS 13613, at *1 (D.C. Cir. June 24, 2008). A leap year was not a basis for equitable tolling, despite the fact that the leap year “caused the statute of limitations to begin running on March 29, 2004, instead of March 30, 2004.” Simpson v. Wolfenbarger, No. 05-CV-71298-DT, 2006 U.S. Dist. LEXIS 6509, at *12 (E.D. Mich. Feb. 21, 2006).

The leap year has also spawned litigation. Litigation has arisen out of a dispute as to how an employer’s payroll practices should be adjusted to deal with the fact that “every eleven (11) years, a leap year causes a 27th pay period to occur.” Matter of Cty. of Erie v. Faculty Fedn. of Erie Cmty. Coll., 2014 NY Slip Op 24158, ¶ 2, 44 Misc. 3d 593, 594, 988 N.Y.S.2d 449, 450 (Sup. Ct.). A court has refused to give a prisoner “an extra day of credit for each leap year that he has served or will serve.” Keystone v. Johnson, Civil Action No. 7:06-cv-00503, 2006 U.S. Dist. LEXIS 63778, at *3 (W.D. Va. Sep. 7, 2006).

Leap years have also thrown wrenches into interest calculations. Kreisler & Kreisler, LLC v. Nat’l City Bank, 657 F.3d 729, 732 (8th Cir. 2011) (“Because the numerator and denominator do not match as they do in the other methods, the 365/360 method increases the effective interest rate by .01389 in a non leap year.”).

The above is by no means an exhaustive list of leap year appearances in litigation, but it does show that even the leap year is not immune from being dragged into the courthouse.

Don’t forget! If you are a South Carolina attorney, you must 2015-16 file your compliance report with the Supreme Court Commission on CLE and Specialization on or before March 1.

Remember that we have Leap Day on February 29 this year. Prepare yourself.

Are you following our law firm, Gallivan, White, & Boyd, P.A., on Facebook? If not, you can do so here. You’ll be able to keep up with all the news from our offices in the Carolinas!

Our favorite legal tweet of late comes from our editor, Jim Dedman, who recently attended the Hospitality Law Conference in Houston, Texas. It is self explanatory.

Um, I was told there would be no spider slides at the Hospitality Law Conference (@hospitality_law). #HLC16 pic.twitter.com/105DBDKyaY

— Jim Dedman (@JimDedman) February 24, 2016