We hope everyone is having a good time at the DRI Annual Meeting in Washington, DC this week. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. have quite the contingent of representatives there, including our editor, Jim Dedman, as well as GWB lawyers John T. Lay, Gray Culbreath, Stephanie Flynn, Ron Wray, and John Cuttino. Say hi if you see us! And don’t forget that Jim is speaking on the McDonald’s hot coffee case this afternoon!

Who has seen The Martian? Has anyone confirmed Mat Damon’s character’s space law analysis? We may need to have one of our contributors investigate that monologue.

Our legal tweet of the week is an important one:

SC Bar & SC Legal Services have a legal aid hotline for victims of flooded areas. To request help from a lawyer-call 1-877-797-2227 ext.120

— annephutto (@annephutto) October 8, 2015

Last week, we reported on the Volkswagen emissions scandal and what we expected would be an onslaught of lawsuits.  So far there have been more 200 federal lawsuits filed in the United States, in addition to investigations from the Environmental Protection Agency and the Department of Justice.  In response to the scandal, Volkswagen has called in the heavy hitters at Kirkland Ellis to lead its defense. Sure, this Volkswagen case will be a procedural and logistical nightmare given its sheer size and scope.  And we know the EPA and DOJ will be looking for their pound of flesh. But at the end of the day, it’s a bunch of customers that are miffed that their car isn’t as green as advertised.  Nobody died. The California coast is not covered in sludge. Some have estimated that Volkswagen may be on the hook for as much as $80 billion. We’d guess it gets out from under this thing for less than $30 billion. Of course, that is not counting the estimated $33 billion dollars in market value Volkswagen has already lost due its stock price plummeting after the scandal broke. Oh, well.

Torts and their reforms have spurned hot debates among lawmakers. Most laymen do not know what a “tort” is, but many of them have also become convinced in recent years that torts must be reformed. Ralph Nader, long-time consumer advocate and enemy of “corporate America,” disagrees. He has recently opened a Tort Museum in Winsted, Connecticut which pays homage to the pure, unreformed tort. According to the museum’s website, the mission of the museum is simple: “The American Museum of Tort Law seeks to increase citizen understanding of Tort Law – the law of wrongful injury – and the role it plays in protecting personal freedom, health and safety through the American civil justice system.”

The New Yorker’s recent article offers readers an idea of what to expect from the attraction. The museum apparently has something for everyone. For beginners, the museum explains the basics:

…a tort is any wrongful act that can be the basis for a civil lawsuit. For example, if you punch the mailman, the county prosecutor can charge you with the crime of assault and the mailman can sue you for the tort of battery. The law looks at the same punch in two different ways.

Surely, the museum also included a disclaimer instructing museum patrons not to strike the mailman. The museum includes an exhibit on the Corvair, the vehicle which was the subject of Nader’s 1965 book, Unsafe at Any Speed. For the tort history buffs, the museum has an exhibit dedicated to the historic “flaming rat” case, which we are still talking about today. Of course, the museum also has a section dedicated to the famous “Hot Coffee” case, a subject on which we often post.  If you visit the tort museum, you may have the opportunity to hear Nader’s personal take on the case:

Inside the museum, Nader personally escorted bewildered townspeople through the exhibits. He stopped in front of the McDonald’s Coffee Cup Case exhibit. “The lawyers didn’t tell people that McDonald’s kept their coffee that hot for commercial advantage. So it would stay hotter than Burger King’s as you drove along the highway. They’d already gotten seven hundred complaints about the burns.” Nader shook his head and looked at his guest, who nodded. He had changed one mind. He seemed satisfied.

Apparently, there is some question whether the museum will be successful:

Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, an organization that supports changes to tort law, said he doesn’t think there is any interest from the general public.

‘You probably couldn’t get school kids there because they’d sue the bus driver on the way’ Mr. Stebbins joked. And the kids ‘might not get out of the parking lot,’ he added, suggesting young people might not be thrilled by a museum about torts.

According to The New Yorker, Stebbins may be right. At least one young lady, who happened to be sporting blue hair, a nose and lip ring, and a hat displaying the hashtag “biteme,” found the museum “boring.” Only time will tell whether the museum will accomplish its mission or whether the hottest item in the museum’s gift shop will be the flaming rat t-shirt or Prosser, Wade, and Schwartz on Torts.

Last year, we here at Abnormal Use questioned when we would see our first meaningful piece of product liability litigation arising out of the legalization of marijuana. Well, apparently, that time is now.  According to a report from ABC News, two Coloradoans who like to partake in the use of marijuana filed a lawsuit against Denver-based pot company, LivWell, alleging that the company grows its weed using an unhealthy pesticide. LivWell allegedly has protected its crop with Eagle 20 EW, a fungicide that can become dangerous when heated. It is banned for use on tobacco.  Authorities previously quarantined marijuana grown at the facility due to the use of Eagle 20 EW; however, the plants were released after they tested at acceptable levels.

While this lawsuit is not exactly what we had in mind when we contemplated marijuana litigation, this medical cannabis doctor says “it is not unexpected”. Due to the conflict between federal and state law regarding the legality of marijuana, there are no federal regulations for the safe growth of marijuana. As such, states which have legalized marijuana must ask themselves what standards they wish to adopt. Colorado has a list of “approved” pesticides, but the list is not all-inclusive, and the research is far from complete.

What is the purpose of this lawsuit other than to be the first marijuana product suit? LivWell no longer uses Eagle 20 EW. The plaintiffs do not allege to be injured by the marijuana (in fact, there are no known cases of marijuana pesticide illnesses to our knowledge). The plaintiffs allege only that they want LivWell to be punished for using Eagle 20 EW. Lack of federal guidance aside, are the Colorado courts really the venue to set the regulatory standards for pot growth? We imagine the plaintiffs’ real intention is to bring life back to a simpler time, when they could grow their own marijuana underneath the protection of a black light in the guest bathroom.

If you practice in state court in South Carolina, you need to be aware of yesterday’s order from the South Carolina Supreme Court canceling state court today due to the flooding. We suggest you read the full text of the order to learn how it might affect you.

The full order is as follows:

 Pursuant to the provisions of S.C. Const. Art. V, §4, I find that flooding throughout the state has caused hazardous travel conditions. In consideration of the safety and well being of court participants, I find it necessary to issue this order.

IT IS ORDERED that proceedings in the Supreme Court, Court of Appeals, Circuit Court, and Family Court are cancelled statewide on Monday, October 5, 2015. All S.C. Judicial Department employees are excused from reporting to work on Monday, October 5, 2015. This includes SCJD employees statewide and in the Supreme Court and John C. Calhoun buildings. All county and municipal employees working within the court system shall follow the weather hazard decisions made by the respective county or municipal government officials in regards to office delays or closings. Master-in-Equity courts shall follow the weather hazard decisions made by the respective county officials, however, court may be cancelled if conditions are hazardous.

Regarding bond hearings and court closures due to inclement weather, a minimum of one bond hearing daily should be conducted, if conditions are safe to do so. Any local curfews should be adhered to. If the weather permits adherence to the regular bond hearing schedule and conditions are safe, the regular bond schedule should apply.

The provisions of this Order are effective immediately.

You can read the order on the court’s website here.

Well, it’s October, so we would remind everyone to listen to U2’s October to celebrate. Not too long ago, a gaggle of our attorneys trekked from Greenville, South Carolina to Atlanta, Georgia to see U2 perform live in concert at the Georgia Dome. How’s that for firm culture?

Our own Nick Farr had an opinion piece run in the Greenville News today. Here is the first paragraph:

It often appears as if we live in a divided world. Whether it be television, radio or social media, stories of conflict and division are at the forefront. Every report seemingly draws a line in the sand, asking us to choose a side while the creation of the “us” versus “them” mentality breeds the conflict necessary for the next big news store. And, so the cycle continues.

For the rest of the article, please see here.

You know, we’ve heard about the McDonald’s hot coffee exhibit at Ralph Nader’s new museum. We are investigating.

Our favorite legal tweet of late:

Sent my co-counsel an email confirming our meeting tomorrow. He responded: “Great, thx, c u there.” My co-counsel is 12 years old.

— Lawyer Cat* (@LawyerCat_) September 28, 2015

Once a rarity, the topic of social media now seems ubiquitous on the agendas of CLEs and conferences across the land.  So much so, in fact, that entire seminars are now dedicated to the challenges faced by lawyers communicating on-line with both themselves and their clients.

At many such conferences, there are handfuls of doomsayers who warn of the great risks that attorneys take when communicating on-line with, well, anyone.  Some of these prognosticators of peril are in positions of authority in state bars across the country, and thus, their remarks prompt great reflection about such risks.  Generally, though, these speakers always seem to trot out the worst case scenarios, including the foolish Illinois public defender who blogged confidential client information (and even suggested in her online writings that she may have perpetrated a fraud upon the court).  There are a handful of other examples far outside the mainstream of lawyer bloggers who, for the most part, conduct themselves professionally.

At a recent conference at the North Carolina Bar Association headquarters in Cary, I heard a new and much more interesting critique of legal blogging.  A seasoned litigator panelist suggested that whenever she is to appear in court against another lawyer, she always investigates whether that opponent maintains a law blog.  If so, she will scour and scrutinize those posts to see if her opponent has ever taken a position opposite to the one advanced against her in the case at hand.  If she finds evidence of such, she can alert the tribunal that her opponent has taken a contradictory position on the relevant law in the past when writing, presumably objectively, on a legal blog. This is, for lack of a better term, impeachment in court by one’s own law blog.  Ouch.

But this does not seem to be a risk of legal blogging specifically but rather communicating one’s ideas and views generally.  For decades and decades and decades before the advent of legal blogs, lawyers delivered speeches, made presentations to trade and legal groups, and authored law review articles.  Sure, that may have been before everything was neatly placed online, easily searchable, and simple to locate in seconds, but there have always been ways in which one lawyer can find the writings of another if that lawyer knows where to look. Like most things, though, that task has been made far, far easier in the digital age, though it could be done before.

Further, what is the likelihood that one lawyer will be writing blog posts that can later be used against him in court?  Interesting question.  Certainly, if one were an author of, say, a defense oriented law blog, it is unlikely that the lawyer author will provide much fodder for plaintiff’s attorneys, and vice versa.  (If I ever square off in court against friend of the blog and Plaintiff’s lawyer Maxwell Kennerly in court, I doubt any of his past blog posts will help any of my defense arguments.). Perhaps there are questions of procedure that might be turned around on one depending upon the circumstances, but certainly there will always be some way for the lawyer blogger to differentiate his or her own thoughts on a reported judicial opinion which is later at issue in a case litigated by him/her.  Anything, after all, can be distinguished.

In sum, one should not leave these conferences fearing that any and all uses of the Internet will rain down discipline upon them.  Rather, an attorney who responsibly adheres to the rules of disciplinary conduct can blog to share his or her insights with lawyer readers or the general public.  Likewise, we should realize that the risk that we might later be “impeached” by our own past blog posts in court is too minimal to take into account.

(This post was originally posted on the now defunct North Carolina Law Blog on February 2, 2012).

The question for today: Might emoticons assist in a hearsay inquiry?

That’s right. I just wrote that.  Let’s back up a bit and I’ll explain why that’s on my mind.

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information.  In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information.  However, she made a stray remark which prompted the law nerd in me to take particular notice.  Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.”  But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

A Westlaw search reveals that there are 26 reported state and federal cases which reference the word “emoticon” in the singular or plural, the earliest citation coming from 2004.  A handful of them cite to United States v. Cochran, 534 F.3d 631, 632 n.1 (7th Cir. 2008), which itself cited the Merriam Webster online dictionary. The most recent is this year’s State v. Jacques, 798 N.W.2d 319 (Table), at *1 n.2 (Wis. Ct. App. 2011) (per curiam). (“An ‘emoticon’ is a ‘group of keyboard characters … that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications’ such as e-mail or instant messaging.”) (citing Cochran). There are other cases, as well. State v. Nero, 1 A.3d 184, 191-92 n.9 (Conn. Ct. App. 2010) (“An emoticon, as it is called in Internet vernacular, is a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.”); State v. Prine, 13 So.3d 758, 761 (La. Ct. App. 2009) (noting that an emoticon is “an online mode of expressing emotion”); Spanierman v. Hughes, 576 F. Supp. 2d 292, 312 n.13 (D. Conn. 2008) (defining emoticons as “symbols used to convey emotional content in written or message form (e.g., ‘:)’ indicates ‘smile’ or ‘happy,’ and ‘:(‘ indicates ‘frown’ or ‘sad’).”).

Most of these definitions state pretty clearly that the emoticon, by its very nature, is designed to convey the emotional state of the author of the statement which it accompanies.

The interesting question raised by Ms. Gailor is whether emoticons, in providing the recipient with a precise state of mind of the sender, aid in the admissibility inquiry.

Let’s turn briefly to the Federal Rules of Evidence.  Where might emoticons be relevant?

What about a “Then-Existing Mental, Emotional, or Physical Condition” under Rule 803(3), defined as “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”?

That’s certain possible, and it might be that an emoticon could provide the statement with additional context to overcome a hearsay challenge.  If you could define or interpret the specific emoticon and argue that it established “then existing state of mind” or “mental feeling,” you might convince the court that the declarant’s statement can come into evidence.

Here’s a more fun one. Might an emoticon indicate that a statement is an “excited utterance” under Rule 803(2), defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”?  Maybe.  That’s a bit trickier, because usually an excited utterance is spoken, not written. When excited, agog, or what have you, what declarant will pause to write a note? However, in the past decade, the deliberate nature of a writing has become, shall we say, far more casual in the era of text messages, Facebook, Twitter, and the like. The spontaneity of instant messages, texting, tweeting and other such forms of new communication make it more likely that a communication is truly instant.

In 1998, a Massachusetts court focused on the issue of whether a particular writing, a fax sent several hours after an assault and battery, could be a spontaneous exclamation and thus not barred by the hearsay rule.  Commonwealth v. DiMonte, 692 N.E.2d 45, 48-49 (Mass. 1998). In so doing, the court noted:

The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender’s demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

Those concerns – written when the communications infrastructure in place was far, far different than that of today’s are now 13 years old. Wouldn’t an emoticon provide some context in lieu of the percipient experience of the sender at the moment of the writing? Wouldn’t the instant nature of text messages or digital writings ameliorate the issues addressed by the court?

Now all we need is a text case.

(This post was originally posted on the now defunct North Carolina Law Blog on December 7, 2011).

Whether it is through added fees or the elimination of amenities, it is no secret that airlines have been looking at ways to save money. Such moves are the cost of doing business, we suppose.  A new lawsuit filed in the Philadelphia Court of Common Pleas, however, suggests that one airline is taking its cost-saving game to a whole new level. As reported by philly.com, five American Airlines workers have filed suit, accusing the airline of cross-using water jugs to transport toilet chemicals.  The water jugs allegedly come directly from the employee break room. The suit contains causes of action for public nuisance, fraud, and conspiracy; it also seeks an injunction for the airline to cease operations until the process is discontinued.

According to the report, the airline assumed the duty of cleaning its lavatories from an outside contractor in 2010.  The lavatories are supposed to be cleaned through the use of two pumps.  One to remove toilet waste from the lavatories and another to return deodorant cleanser, also known as “blue juice,” back into the toilets.  Unfortunately, the intake mechanism for the “blue juice” pump has allegedly broken on many Boeing 757s.  Rather than make the repairs, airline workers are allegedly directed to pour the blue juice into empty, 5-gallon water jugs and manually pour the jugs into the toilet.  Thereafter, workers allegedly return the water jugs to the break rooms without cleaning them. In turn, the water vendor picks the jugs up for re-filling.  And, so the alleged cycle of decontamination goes on.

As is the case with any new lawsuit, we here at Abnormal Use have no idea as to the merit of this case.  On the surface, the allegations certainly don’t seem to describe a sanitary practice.  On the other hand, we don’t know if anyone actually drinks from the uncleaned jugs. We would hope that after they are retrieved and replaced by the vendor that the vendor would also make investigate and/or clean them before placing them back in service.

We have to wonder whether this lawsuit addresses the drinking water itself or the process. In other words, could this be a case of disgruntled employees overburdened with the new task of manually refilling the blue juice?  If not, couldn’t this situation be remedied by having the employees transport the blue juice with a 5-gallon bucket rather than a jug?

Everyone knows the old adage from the sports world: “If you ain’t cheatin’, you ain’t tryin.”  Well, it appears that Volkswagen (VW) has been trying really, really hard when it comes to meeting vehicle emissions standards. Recently, it was revealed that VW was cheating on emissions tests for its “clean diesel” vehicles to make their emissions appear much lower than they actually were. VW has admitted that internal investigations have revealed that the “problem” may effect nearly 11 million VW vehicles world wide.

The issues stems from software on VW’s line of clean diesel vehicles that were apparently intentionally programmed to provide artificially low emissions numbers when connected to emissions testing devices. According to the EPA, VW programmed the engine management software in some diesel cars to activate emissions controls only when being tested. Those same cars would allegedly emit up to 40 times the allowed amount of nitrogen oxide when on the road.

The company is already under investigation by the EPA and the Department of Justice as well as government agencies in Germany, France, Italy, and South Korea. As if the potential for fines and criminal charges is not bad enough, civil lawsuits by consumers are already coming.  Stay tuned.  It should be a wild ride.