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

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery). One would want to promote and get views from The Marketing Heaven.  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).

We  are often asked – sometimes even by interested coworkers – how to blog.  Good question. Sometimes they are legitimately curious, other times they just wonder how and why we do the nerdy things we do.  We’ve seen this question addressed on many a blog, but a good many of them miss the point.  The curious readers are not really asking how to create a blog, design a blog, or promote a blog, but rather, how to sit down and engage in the process of writing and editing a blog entry itself.  That’s the real trick, isn’t it?  How do you determine what to discuss on your blog?  Once you figure that out, the rest is easy.

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

But even armed with an idea for a post, some would-be bloggers face a challenge in converting it into a proper blog post.  This, too, can be easy, if you approach the task in the proper way.  Lots of writers become discouraged with the idea of drafting a post. To them, blogging is the difficult task sitting down in front of a blank computer screen on a single occasion and then formulating an idea for a post, writing it, and editing it, all in one sitting.  Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.  This makes it much easier to complete the task – they’re not producing a post out of thin air but massaging earlier work product into a final post.

So there you go, would-be bloggers. Have at it.

(This post was originally posted on the now defunct North Carolina Law Blog on March 14, 2012).

If you are like us, you are a part of the growing number of people who are getting sick of the incessant commercials for those daily fantasy sports sites, FanDuel and DraftKings. Count Washington Redskins wider receiver Pierre Garcon as one of them. According to a report from ESPN, Garcon has filed a class-action lawsuit against FanDuel (but not DraftKings – more on that below).  The suit, filed in federal court in Maryland, accuses FanDuel of misusing players’ names and likenesses without proper licenses or permission.

To be fair, Garcon is not necessarily upset about the sheer volume of the commercials, but rather the frequency with which his name occurs in them. For example, in one 28-minute infomercial, Garcon’s name is seen 53 times. We assume the 53 times is more than overkill as Garcon would have taken issue with the use of his name even once.

This case is interesting on several fronts. First, this isn’t necessarily a case of a company fraudulently acting as if a famous person is endorsing its product.  While we admittedly have not seen every commercial or the 28-minute infomercial (thankfully), we have not seen an instance where Garcon’s name is being used in a manner that would even imply that he is a FanDuel supporter. Rather, Garcon’s name is used in examples of how the fantasy sports site operates. Users draft players like Garcon based on daily “salaries” contingent on the player’s statistics and value. As a decent player with decent fantasy value, Garcon’s name and statistics are bound to come up in the examples.

FanDuel apparently takes the position that it has every right to use Garcon’s name in this context. As FanDuel spokeswoman Justine Sacco said in a statement, “We believe this suit is without merit.  There is established law that fantasy operators may use player names and statistics for fantasy contests.”  The law she is referring to is the case of National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd 1997), in which the Second Court of Appeals held that federal copyright statutes do not allow for the ownership of data. If this case really is about data, then maybe FanDuel has an ally.

Apart from the merits, the more intriguing thing about this lawsuit is the fact that DraftKings, who advertises in a similar manner to FanDuel, is not a party. The simple answer to its omission is that DraftKings has a marketing relationship with the NFL Players Association and such it is permitted to use the players in its advertising. The more interesting question though is whether DraftKings played any role in urging Garcon and the NFLPA to bring the suit in the first place. What better way to take down a competitor than to sit back and watch a class action lawsuit unfold against it?

Avid Readers, as we are sure you recall, we first reported on the class action lawsuit against Subway back in 2013. Basically, the lawsuit alleged that Plaintiffs’ “12 inch” sandwiches from Subway were shorter than 12 inches, and that’s evil.  Two and a half years later, the 11 named Plaintiffs, represented by a collective 10 law firms, have settled with Doctor’s Associates, Inc., the franchisor of Subway Sandwich Shops. The fact that the franchisor’s name is Doctor’s Associates, Inc. is easily the most surprising thing in this lawsuit, by the way.

As a potential member of the class (someone who purchased a 6 or 12 inch sandwich from Subway between Jan. 1, 2003 and Oct. 2, 2015), we could not wait to find out what we were owed for this injustice. We hoped it would be like when Red Bull had to admit that it did not actually give you wings and had to send all of the class members who opted in free Red Bull. We actually did opt in, but we still haven’t received our Red Bull, but that’s not the point. With this Subway lawsuit, we hoped that we would all receive free subs at a minimum.

DRUMROLL………..

And a class member, we are set to receive . . . nothing. Apparently, Doctor’s Associates will make changes to its practices to ensure that the length of its sandwiches is as advertised. So, unless you are one of the named Plaintiffs or one of the 11 firms representing them, you are getting nothing. The named Plaintiffs will receive no more than $1,000 each.

Wait, we almost forgot, someone is getting paid, just not you or me. The 11 law firms will be reimbursed their attorneys’ fees, costs, expenses, and a class representative service award (which we can only hope is a button for their lapels) not to exceed $525,000.

We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. wish you a happy and safe Halloween weekend. Above, in honor of the occasion, you’ll find the cover of Ghosts #45, published way, way back in 1976 (when the major publishers dabbled in horror comics). We felt it an appropriate comic book cover for today of all days. If you like, you can peruse a gallery of covers from the Ghosts series over at the Comicvine website by clicking here. Whatever the case, stay safe and enjoy your candy. We’ll see you on Monday.

Happy Halloween, dear readers! To celebrate, we direct you to comic book cover above, that of Batman #237, published way, way back in 1971. “A Haunting Halloween Novel,” the cover proclaims the issue to be as we bear witness to Batman and Robin battling the Reaper. We’d actually never seen this comic book cover before today, and we must confess that we’re a bit curious about it. Presumably, though, Batman and Robin prevailed, as we know the comic book series continued with them. I suppose we should offered a spoiler alert for that?

We must confess that we adore Halloween-themed popular culture. Five years ago, way back in 2010, a few Abnormal Use writers revealed their favorite scary movies. See here to revisit that piece. Our editor, Jim Dedman, wrote as follows:

The scariest movie I’ve seen would be, of course, Stanley Kubrick’s The Shining, although that is not the best story I have about a fear-filled work of cinema. In July of 1999, I was a first quarter law student at Baylor University in Waco, Texas. That month, I faced one of my first – and most dreaded – finals: Civil Procedure. (That frightful test, written and administered by the now retired Professor Trail, was scary enough.). After enduring that test, I took the rest of the day off, drove to Austin, and saw The Blair Witch Project, then out in theatres for only a few days, at the now defunct Dobie Theatre. Shot in a point of view fashion, the film profiled the misadventures of a group of students who venture out into the Maryland woods to explore the Blair Witch myth. The now defunct Dobie was a small, indie venue, and the particular theatre we were in had less than hundred seats. Imagine seeing that movie in such a place before all the hype and newspaper coverage ruined the original guerrilla style marketing of the film. At that time, there were still people who somehow believe the “found footage” was real. Of course, at the end of the day, I can’t say which was more horrifying, the film or the final.

Meanwhile, writer Nick Farr picked a different film:

Before I saw The Exorcist as a young teenager, I thought I was pretty tough. The Shining was boring. “It” made me laugh. Halloween just left me with a childhood crush on Jamie Lee Curtis. There was something about The Exorcist, however, that affected me in a way that Betsy Palmer (a/k/a Mrs. Pamela Voorhees) yielding a machete simply could not. Maybe if Michael Myers would have spun his head around backwards, Halloween would have been more to me than a breakthrough performance for another Hollywood starlet. Maybe if Pennywise the Clown would have crab-walked down a flight of stairs, I would not have thought of “It” as an adult-sized Bozo. Even today, when I reminisce about Regan walking into that party and innocently proclaiming, “You’re going to die up there,” chills run down my spine, and those feelings I felt seventeen years ago are resurrected. Tonight, I better sleep with the holy water.

Stay safe during your trick or treating this weekend!

In a recent Charlotte Agenda article, the author, Mary F. Gross, reports on a home that her friend recently purchased – a 1920’s “bootlegger house” which came with historical character, secret compartments for stashing booze, and . . . a ghost? The buyers were apparently notified for the first time at the closing that the home also came with a “mischievous spirit.” In the piece, the author remarks that she would have “ripped up every single document in front of me and accused the owner of breaking some sort of ghost-disclosure law.” This got us thinking. Since it is the week of Halloween, we thought it appropriate to examine what type of “ghost disclosure law” there might be.

As you may expect, in the law, there are not many failure to disclose haunting cases, despite the fact that “[a] 2012 poll conducted by Huffington Post/YouGov found that 45 percent of American respondents believe in ghosts.” See Amanda C. Brown, Caveat Emptor, Buyer Boo-Ware Does Texas Require the Disclosure of Spooky Details in Real Estate Transactions?, 77 Tex. B.J. 780, 781 (2014).

One reported case we found comes from New York. In that proceeding, the “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.” Stambovsky v. Ackley, 169 A.D.2d 254, 255-56 (N.Y.A.D. 1991).  In Stambovsky, the court noted the traditional rule that “with respect to real estate . . . the doctrine of caveat emptore . . . imposes no duty upon the vendor to disclose any information concerning the premises.” Id. at 257. However, the Defendant in Stambovsky “reported [the] presence [of poltergeists] in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively)” and the home was included on a walking ghost tour in the community. Id. at 256. In other words, the seller did disclose the presence of the poltergeists, but the disclosure was made to everyone except the buyer to whom she sold the home. As a result, the court found that the “defendant is estopped to deny [the poltergeists’] existence and, as a matter of law, the house is haunted.” Id. The Court ultimately concluded that “[a]pplication of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.” Id. at 260.

Some states maintain statutes which generally dictate one’s duty to disclose murders or other ghastly crimes committed in a home. Florida’s statute provides that “[t]he fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.” Fla. Stat. Ann. § 689.25(b). Massachusetts law provides that a buyer has no duty to disclose that a property has been “psychologically impacted,” meaning that there is no duty to disclose “that the real property was the site of a felony, suicide or homicide” or “that the real property has been the site of an alleged parapsychological or supernatural phenomenon,” among other things.  Mass. Gen. Laws Ann. ch. 93, § 114 (b), (c). California law only requires disclosure of an “occupant’s death upon the real property or the manner of death” if the death occurred in the three years prior to the sale, unless the buyer specifically asks. Cal. Civ. Code § 1710.2 (“Nothing in this section shall be construed to immunize an owner or his or her agent from making an intentional misrepresentation in response to a direct inquiry from a transferee or a prospective transferee of real property, concerning deaths on the real property.”). And sorry, kids, you can’t vandalize a home just because you believe it to be haunted.  See Daniel B. Moar, Case Law from the Crypt the Law of Halloween, N.Y. St. B.J., October 2011, at 10, 12 (citing Hayward v. Carraway, 180 So. 2d 758 (La. Ct. App. 1965) writ refused, 248 La. 909, 182 So. 2d 662 (1966)).

So, there you have it, if the State of North Carolina follows what appears to be the general law on ghost disclosure, there would be no duty for the seller to disclose the ghost in the bootlegger house, unless the seller had previously represented that the house was haunted, or unless the seller responded in the negative when specifically asked. We also wonder whether courts these days would impute to buyers knowledge which can be gleaned from the Internet (for example, from websites which purportedly can tell you if anyone has died in the house you are buying). In any event, for the time being, it does not appear that there would be a cause of action for nondisclosure of the ghost in the bootlegger house.

And, while the question was not posed, we believe we know what the bootlegger house ghost is after. Think about it. The ghost locks himself in the bathroom with the water running and flees down the stairs when someone catches him in the act. He tries to fire up heat sources and gets down copper pots from the cabinets. Folks, the man just wants to make bathtub gin, white lightnin’, or some other form of home made booze!  Let the ghost do what he does best and you may see less of this:

And more of this:

[Of course, we make no representations regarding the safety or legality of humans or ghosts making alcohol in a private residence in North Carolina.]

On October 12, 2015, news broke that Steve Spurrier was voluntarily resigning from his position as the University of South Carolina’s head football coach, effective immediately. And just as soon as this announcement was made, every social media outlet was full of Gamecock fans sharing their glowing endorsements of their beloved “Head Ball Coach.” Nothing but praise for the coach that took the Gamecock program out of the ditch and made them contenders in their tough division in the South Eastern Conference.

Initially, there was nothing but love and admiration for the HBC from Gamecock fans; however, some fans have now gone in another direction after analyzing their former head coach’s actions in the wake of his announcement and their conclusion that Spurrier doesn’t care about USC. It’s not only an intriguing topic, but also plausible.

In a recent article posted on a Gamecock fan website, a disgruntled USC fan wrote an article discussing his/her recent epiphany about Spurrier’s departure. The fan’s ultimate conclusion is that Spurrier doesn’t care about USC or the Gamecock fan base. In defense of this heartbroken fan, he/she makes a compelling argument and supports that position with some good evidence. This fan first pointed out that the Spurrier quickly shot down any discussions of him serving in some type of advisory position at USC and the HBC never said anything about how much he enjoyed his time at USC or anything about cherishing his memories at the university.

Further, when Spurrier was asked a direct question about a message he would like to share with the Gamecock fan base, he responded “with absolutely no emotion and classic shrug of the shoulders, he said, ‘I’m no longer the head coach, so I’d just thank them for all they’ve done. I don’t really have a message.’ He thanked the fans for ‘receiving’ him and his family. And with that, he abruptly concluded the press conference, ‘Okay let’s get moving, I’ve had enough here.’”

This fan concluded “that Steve Spurrier doesn’t adore South Carolina like he adores Florida and Duke. But more disappointing was the realization that the Head Ball Coach doesn’t care for the Gamecocks as much as Gamecock nation cares for him. I wonder if he cared at all.”

Another interesting aspect of this relationship is that Spurrier will also continue to be paid his full salary throughout the remainder of the year. As stated in a recent article published by The State, Spurrier is situated to receive more than $920,000 through the end of the year. Not too shabby of a deal for the “Former Head Ball Coach.” A tip of the hat to Mr. Spurrier who will surely go down in the history books as a legendary college football coach, and he was able to make his exit (from a program that could potentially finish the season with a losing record) in nothing but praise and glory.

We regret to inform our readers that various media outlets, including the American Cancer Society Pressroom Blog, have reported that the “International Agency for Research on Cancer (IARC), a part of the World Health Organization, has classified processed meat as a cancer causing agent (carcinogen), and red meat as a probable carcinogen.” These conclusions apparently “are based primarily on evidence showing an increased risk of colorectal cancer” and “also evidence of increased risk of pancreatic and prostate cancer.”

We here at Abnormal Use have questions (after we pick ourselves up off the floor). For starters, how did the IARC reach these conclusions?

According to the WHO, the following is the more detailed basis for the conclusion as to red meat:

After thoroughly reviewing the accumulated scientific literature, a Working Group of 22 experts from 10 countries convened by the IARC Monographs Programme classified the consumption of red meat as probably carcinogenic to humans (Group 2A), based on limited evidence that the consumption of red meat causes cancer in humans and strong mechanistic evidence supporting a carcinogenic effect. This association was observed mainly for colorectal cancer, but associations were also seen for pancreatic cancer and prostate cancer.

As to processed meats, which include “hot dogs (frankfurters), ham, sausages, corned beef, and . . . beef jerky as well as canned meat and meat-based preparations and sauces,” the WHO explains only that “[p]rocessed meat was classified as carcinogenic to humans (Group 1), based on sufficient evidence in humans that the consumption of processed meat causes colorectal cancer.” So, “a Working Group of 22 experts from 10 countries” reviewed “scientific literature” and found “limited evidence” suggestion an “association” between consuming red meat and three types of cancer, and this same group of experts found “sufficient evidence” that the consumption of processed meat “causes” a specific type of cancer? We carnivores at Abnormal Use feel compelled mine down into these conclusions and educate our non-toxic tort lawyer readers on some of these terms that the WHO has used to accuse an American dietary staple of wrongdoing.

First of all, what is a carcinogen?

According to the American Cancer Society, carcinogens are “[s]ubstances and exposures that can lead to cancer.” (emphasis added). It is important to note that “[c]arcinogens do not cause cancer in every case, all the time” and that “[s]ubstances labeled as carcinogens may have different levels of cancer-causing potential.” For example, substances may be carcinogenic only at certain doses or exposure intervals. A person’s genetics may also play in to how carcinogenic a substance is for that person. The IARC places agents into various categories or groups of carcinogens, which are depicted in the image below:

Red meat has been placed in Group 2A and processed meat has been placed in Group 1.

How do scientists determine whether something is a carcinogen?

How do scientists determine the risk of disease presented by exposure to a particular substance? This is known as the field of epidemiology, which is typically defined as “the scientific study of disease patterns among populations in time and space.” Epidemiologists use various tools to assess risk of disease, including case-control studies, and cohort studies.

A cohort study is “a group of people with defined characteristics who are followed up to determine incidence of, or mortality from, some specific disease, all causes of death, or some other outcome.” With a case control study, “the diseased patient is questioned and examined, and elements from this history taking are knitted together to reveal characteristics or factors that predisposed the patient to the disease.” There are other tools used by epidemiologists, but these are the two which are most relevant to this article.

The goal of the epidemiological study (relevant to this post) is to determine the potential effect to a human being of exposure to a particular substance. An epidemiological study could find an “association” between an exposure and a health effect, which is simply “a relationship between two, or more, variables.” For example, a study of 20 murderers who happened to have all been wearing blue shirts might show that more blue shirts are associated with more murders. Causation, on the other hand, “means that the researchers found that changes in one variable they measured directly caused changes in the other,” which would be for example, “research showing that jumping of a cliff directly causes great physical damage.”

There are potential issues that could weaken a particular study. For example, the results of the study could be due to chance. In our blue shirt murderer example, the fact that all of the murders happened to be wearing blue shirts may simply be due to chance; therefore, the association between blue shirts and murder is meaningless. “Confounding” is also an issue which “involves the possibility that an observed association is due, totally or in part, to the effects of differences between the study groups (other than the exposure under investigation) that could affect their risk of developing the outcome being studied.” Another potential issue is bias, which includes “any systematic error in an epidemiological study that results in an incorrect estimate of the association between exposure and risk of disease.” For example, test subjects may have “recall bias” in that they remember some past exposures and forget others. Ideally, a study will control for these issues to strengthen the results of the study. In general, the more these issues are controlled for, the more reliable the results of the study, and vice versa.

How strong is the link between meat and cancer?

As mentioned above, the IARC has concluded that there may be an “association” between the consumption of red meat and the development of certain type(s) of cancer, and the IARC was able to find a causal link between processed meats and certain types of cancer. Obviously, we know that association is not synonymous with causation, and a reading of the full text version of the WHO article raises other concerns with the study linking the consumption of certain meats to cancer.  For example:

• Data on the association of red meat with colorectal cancer were only available from 14 cohort studies and 15 case-control studies, and positive associations were only found in half of the cohort studies and less than half of the case-control studies.
• While the experts believe they can rule out chance, bias, and confound as “unlikely” with processed meat, “[c]hance, bias, and confounding could not be ruled out with the same degree of confidence for the data on red meat consumption” because “no clear association was seen in several of the high quality studies and residual confounding from other diet and lifestyle risk is difficult to exclude.”

Additionally, we feel compelled to point out that the dose makes the poison, and according to the IARC, you have to eat approximately a quarter of a pound of red meat per day to increase your risk of developing cancer by 17 percent.  And you have to eat approximately an eighth of a pound of processed meat per day (apparently the equivalent of two strips of bacon) to increase your risk of cancer by 18%. Also, while the IARC suggests that “[m]eat smoked or cooked over a heated surface or open flame contains PAH,” which allegedly “cause DNA damage,” the IARC admits that “little direct evidence exists that this occurs following meat consumption.”

Without more information regarding: sample size; control for bias, confounding, and chance; and other important information, we at Abnormal Use are not inclined to amend our carnivorous habits.

For now, though, red meat and processed meats will have to remain in the list of substances accused by the IARC of containing carcinogens, along with substances such as chlorinated drinking water, pickled vegetables (asian), coffee, hair coloring products, extremely low frequency magnetic fields, salted fish (Chinese style), tea, and various others.

Last week, a Georgia court dismissed a lawsuit filed against a sperm bank and a sperm donor who allegedly engaged in some foul play in selling their product. The suit, filed in March by Canada residents Angela Collins and Margaret Elizabeth Hanson, accused Xytex Corporation of misleading its customers as to the true nature of the sperm’s donor. Specifically, Collins and Hanson alleged that Xytex employees informed them that their donor was “smart, healthy and mature” when in fact he was schizophrenic, dropped out of college, and had been arrested for burglary. We assume Hanson and Collins started looking ahead to their baby’s teenage years and didn’t like what they saw. We also assume that they are unfamiliar with Steve Jobs.

The suit contained causes of action for fraud, negligence, and product liability. In his order, Fulton County Judge Robert McBurney determined that each claim was “rooted in the concept of wrongful birth,” which is not recognized under Georgia law. Nonetheless, Judge McBurney noted the complicated issues presented by the development of reproductive science, stating:

Science has once again – as it always does – outstripped the law.  Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services.  After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.

We here at Abnormal Use wholeheartedly agree with Judge McBurney’s decision. The viability of wrongful birth claims aside, the birth of a child is always a crapshoot whether conceived naturally or through artificial means.  The beauty of life is its randomness and unpredictability. While we have made strong progress in genetic research, there is no way to accurately predict everything about a new life. Nonetheless, parents love and  care for their children regardless of their child’s health history or their susceptibility to making good or bad life choices. It is a part of life. We can’t outwit it regardless of whether we conceive naturally or through the aid of a sperm bank.

Given the unpredictability of life, we question whether obtaining inaccurate (or even fraudulent) information from a sperm bank should warrant a valid claim. This can of worms none of us wants to open.