As you may know, sometimes we here at Abnormal Use contribute content to other online ventures. Last week, our own Kyle White saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). The subject is one he knows well: asbestos jurisprudence in South Carolina.

Here’s the first two paragraphs of the piece:

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.

A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.

You can read the rest of the article here.

We encourage you to give it a read.

Well, you may recall that last week we here at Abnormal Use published an April Fool’s Day post suggesting that a federal court had halted the production of the planned reboot of “Twin Peaks.” We must be clairvoyant. Just a few days later, famed director David Lynch announced that he would not longer be associated with the project (leading some to believe that the Showtime premium cable network might not go forward with the program without the auteur’s participation).

Did we do this? Are we the cause of this?

We tend to think we are not the proximate cause of this debacle, but it did cross our minds.

Alas.

Whatever the case, we’re crestfallen that we might not be able to see a new version of the series with Lynch at the helm.

By the way, did you remember that Laura Palmer’s father, Leland (played by Ray Wise in the show), is a lawyer?

The Golf Channel recently received some bad news after the Fifth Circuit Court of Appeals issued an unfavorable decision in Ralph Janvey, as Receiver for Stanford International Bank Limited, et al., v. The Golf Channel Incorporated, Case No. 13-11305, potentially costing The Golf Channel millions of dollars.  The Fifth Circuit reversed a lower court’s decision and ordered The Golf Channel to pay approximately $5.9 million dollars to the Receiver for Stanford International.  As one would suspect, The Golf Channel was not pleased with this decision; further, this decision raises many questions about all the companies and individuals that could potentially be exposed to the same risks that The Golf Channel was exposed to.

This order to refund money previously paid to The Golf Channel came as a result of the uncovering of a multi-billion dollar Ponzi scheme that had been orchestrated by Stanford International Bank (“Stanford”) for nearly two decades.  The Golf Channel became involved with Stanford in 2006 when it contracted to provide advertising and other promotional services for Stanford over the course of a two-year period.  Before the expiration of that two year period, the parties agreed to a four year extension.  In 2009, the SEC uncovered Stanford’s Ponzi scheme and subsequently filed suit against Stanford.  Ralph Janey was appointed to serve as the Receiver, tasked with the responsibility of taking custody of assets owned or traceable to the receivership estate which included “recovering any voidable transfers made by Stanford before going into receivership.”  That’s when the receiver pulled out his driver, let the big dog eat, and went for the green, all $5.9 million of it.

The receiver filed this suit to recover the money under Texas’ unfair trade practices act which allows creditors to void previous transactions that were fraudulent and forces the transferee to return the funds received as a result of that transaction.  However, transferees cannot be forced to return a transfer when it can be shown that: (1) the transferee took the transfer in good faith; and (2) that, in return for the transfer, it gave the debtor something of ‘reasonably equivalent value.’  Ultimately, the Fifth Circuit Court of Appeals found that The Golf Channel failed to show that its advertising services provided reasonably equivalent value from the standpoint of Stanford’s creditors.  Rather, the advertising services only served to further Stanford’s fraudulent purposes.

What’s interesting about this case is that The Golf Channel had no knowledge of the fraud being perpetrated by Stanford.  The Golf Channel was described by the district court as being “more like an innocent trade creditor than a salesman perpetrating and extending the Stanford Ponzi scheme.”  Now The Golf Channel is taking quite the hit for agreeing to provide an otherwise legitimate service for another party that turned out to have orchestrated a large scale fraud.

The question now is how far could this decision reach?  Apparently, commercial time and promotional services are not considered reasonably equivalent in value to the creditors’ money, but what else would also be tossed into this category?  Furthermore, what kind of responsibility does this decision place on companies to investigate other parties before agreeing to provide potential services?  How much will one party need to know about the party’s business practices and procedures before agreeing to a contract?  Only time will tell.

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.

The craft beer community is a passionate one. Bell’s Brewery makes fantastic beer, and as you probably know, it is a popular name in the craft brew world. However, Bell’s has been garnering negative press lately for its perceived bullying of a smaller Asheville, North Carolina area brewery in a trademark dispute.

Since we here at Abnormal Use maintain offices in both of the Carolinas, we felt compelled to comment upon this matter.

At issue is a brewery named Innovation Brewing. So, where’s the dispute? The names Innovation Brewing and Bell’s Brewery are so dissimilar that no one could possibly confuse the two, right? Well, not according to Bell’s, which believes there is a risk of confusion between the companies in light of an unregistered slogan that Bell’s has used in some marketing materials: “Bottling innovation since 1985.”

Okay. Seriously, how drunk would a customer have to be before trying to buy a Bell’s IPA and accidently ordering an Innovation Brewing IPA?  “Out of this world” drunk, according to the co-founders of Innovation Brewing.  In a statement issued on Facebook, the co-founders stated: “We do not believe that any human on Earth would confuse Innovation Brewing with Bell’s Brewery, despite their slogans.”

As for that backlash from the passionate craft beer community? At least one bar in Asheville, North Carolina stopped serving Bell’s shortly after news of the legal dispute became public.  There’s also a petition started by craft beer enthusiasts called the “Secret Beer Group” asking Bell’s to drop the matter. The petition has over 5,000 supporters.  And just for good measure, there’s some gem posts on the beeradvocate.com message boards with comments such as: “I’m calling bully and [BS] on Bell’s. No one in their right mind would ever confuse this.” We’ll be keeping our eyes on this one . . . .

In a previous post, we discussed the lawsuit filed by Kaci Hickox to challenge the quarantine imposed upon her following her return from a stint in Africa during which she treated Ebola patients.  Another Ebola-related lawsuit has now been filed.  Nina Pham, the nurse who contracted Ebola in a Texas hospital, filed a complaint in the district dourt of Dallas County, Texas against Texas Health Resources, Inc. (THR) the hospital system for which she worked at the time she contracted Ebola.

The complaint, which can be viewed here, alleges that the hospital had no plan to deal with Ebola and that the protocols in place were not adequate to protect employees against the virus despite the hospital’s advance knowledge that it should be prepared to deal with Ebola.  The thirty-six page, artfully written complaint is actually an interesting read, and it contains a number of shocking allegations.  It even has pictures!  abcNEWS outlined some of the more surprising allegations in the lawsuit here.  Some of the more interesting claims deal with the hospital allegedly violating HIPAA by releasing video footage of Nina Pham and disclosing details of her treatment without her consent.

Pham is represented by Charla Aldous and Brent Walker of the Aldous Law Firm in Dallas, Texas.  According to the docket, THR has not yet filed an answer, nor have any attorneys entered an appearance on its behalf.  According to this American Lawyer article, the hospital should have no shortage of Ebola litigation teams to select.

We hope you enjoyed Wednesday’s post – our sixth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was  “Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds.” How about that? Popehat even tweeted it!

That said, one curmudgeon from our office emailed us on Wednesday and remarked: “I might have appreciated it more if I had ever actually seen an episode of either of those shows.  Their relative obscurity, however, probably makes them perfect fodder for an April 1 post.” Relative obscurity? Sigh.

So, of course, for today’s edition of Friday Links, we had to go with an X-Files comic book cover. In fact, above, you’ll find the cover of The X-Files #1, published by Topps way, way back in the halcyon days of 1995.

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

“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 recently blogged about vaccine law in light of the recent measles outbreak in the United States.  We now have a recent example of measles-related litigation which does not involve allegations of a defective vaccine. A German biologist and measles virus skeptic, Stefan Lanka, reportedly offered 100,000 euros, or $106,300 USD, to anyone who could prove the existence of the measles virus.  Lanka apparently believes that the illness is psychosomatic – that measles is actually a set of symptoms which manifests itself as part of some peoples’ unusual mental reaction to traumatic separation.  Well, unfortunately for Lanka, German doctor David Barden was able to easily gather various medical studies which show that measles is indeed a virus.  When Barden presented the proof to Lanka, Lanka dismissed the findings and refused to pay, so litigation ensued. A court in the town of Ravensburg ruled that the proof provided by Barden was sufficient, and that Lanka needed to pay up.  That is, the court ordered Lanka to pay Barden the entire 100,000 euros.  Rough day for Lanka – disproven, disgraced, and dispossessed of 100,000 euros.  And to add a cruel twist, the story has gone viral, or perhaps the spread of the story is merely psychosomatic.

Big news from the West Coast in entertainment litigation. This morning, a federal court in California enjoined certain Hollywood studios and related companies from beginning production on the recently announced reboots of the 1990’s television series “Twin Peaks” and “The X-Files.” See Chambers v. Showtime Networks, et al, No. 4815162342 (M.D. Cal. April 1, 2015). The Plaintiff, Reginald Chambers, brought suit upon hearing news of the planned remakes of the aforementioned television programs. Chambers, a former denizen of the Usenet television forums in the 1990’s and a self-described “1990’s enthusiast,”claims he suffered bouts of severe depression, memory loss, and “unprompted wistful musings.” As a result, he sued in California state court under various theories of recovery, including negligence, fraud, unfair and deceptive trade practices, and the archaic “tortious interference with the past” cause of action (abrogated by most state courts and last invoked in the litigation which arose from the 1974 film adaptation of The Great Gatsby). Chambers also sought an injunction compelling a halt to the production of the two programs.

He sued what he called “a coterie of callous and temporally insensitive Hollywood defendants,” including Showtime Networks, Inc., CBS Corporation, and Lynch/Frost Productions, arising from the planned “Twin Peaks” reboot, and Twentieth Century Fox Television, Inc. and Ten Thirteen Productions as a result of “The X-Files” continuation. For their part, the defendants removed the case to federal court and filed various responsive pleadings, including a motion to dismiss on laches grounds. The Plaintiff’s claims against individual defendants Kyle MacLachlan and David Duchovny were dismissed in light of certain testimony from the defendants’ retained testifying expert, television critic Frederick Lowell, who opined that “television actors cannot be held accountable for their actions.” However, the federal court denied the corporate defendants’ motion to dismiss as premature and granted the motion for temporary injunction.

In supporting its conclusion, the court noted that “there is no finer episode of television in the 1990’s that ‘Clyde Bruckman’s Final Repose,’ the award winning episode of the “The X-Files” released in 1995, and to dilute it with later, lesser works in the same series would be sanctionable at best.” Further, the court found that the ambiguity of the original 1991 “Twin Peaks” finale “cast such a wonderful pall over the television landscape at the time that to undo it now via a reboot would harm both Plaintiff and the general public at large.” Further, the court held:

The federal courts have always served as the gatekeepers of the nation’s nostalgia. See In re: Buddy Holly, 235 F. 201, 202 (5th Cir. 1958); see also Iron Butterfly v. Nixon, 257 F. Supp. 47, 47-49 (E.D.N.Y. 1969). As such, federal district courts may halt a defendant’s actions when they constitute either a threat to public memory or cherished institutions of popular culture. See Estate of Hitchcock v. Van Sant, 626 F.2d 97, 101-102 (9th Cir. 1998) (noting, in case involving remake of the 1960 film Psycho, the role of the federal courts as “the praetorian guards of beloved American cinema”). In the case at bar, the Plaintiff invokes a novel theory of “1990’s estoppel,” in which he contends that “what happened, happened” and that the popular culture of that decade cannot be relitigated by the Hollywood of today. In advancing this theory, the Plaintiff points to a number of cases in support of this conclusion. See Tennant v. Eccleston, 650 U.S. 199 (2009) (finding that “matters of temporal stability and nostalgia are within the jurisdiction of the federal courts”); see also Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011) (finding Star Wars prequels unreasonably dangerous and defective); Holder v. Swift, No. 15-1975 (S.D. Tex. January 7, 2015) (questioning a musical artist’s ability to name a commercial recording after a  year which that performer does not herself remember); but see Reznor v. Cash, 518 F. Supp. 2d 752 (N.D. Cal. 2001) (finding that a remake of a popular musical work representative of a particular decade can be “so transformative that any dispute arising from it is nonjusticiable in the federal courts”). He also points to this court’s failure to halt the production of the reboots of “Beverly Hills, 90210” and “Dallas” as evidence of the societal damage which may result when federal courts abstain from this duty. After considering the weight of the evidence presented, the likelihood of success on the merits, and the interests of the general public at large, I hereby grant the Plaintiff’s request for an injunction prohibiting production of the aforementioned programs.

(citations included).

Curiously relying on a series of 19th century cases arising from that era’s litigation of Impressionist works, the court also rejected, by analogy, the defendants’ damages argument that “no ennui can stem from programs originally released in standard definition.”

Representing the plaintiff was well known California entertainment attorney Thomas Wyatt, who had previously argued, successfully, that it was within a California federal court’s inherent power to prevent the rock band Smash Mouth from reuniting and embarking upon a nostalgia tour. Reached this morning via email, Mr. Wyatt indicated that he regretted that he could not amend his pleadings in time to add the production company rebooting the television sitcom “Coach” as defendants in the matter.

On Monday evening, April 6, 2015, two teams will take the floor in Indianapolis for the NCAA Men’s Basketball Championship. As the winning team cuts down the nets, CBS Sports will play highlights from the tournament, set to the song, “One Shining Moment”, written by David Barrett. Versions of this song by Teddy Pendergrass and Jennifer Hudson have been used in the past; the most recent rendition is by the late Luther Vandross.

One shining moment, it’s all on the line

One shining moment, there frozen in time

One shining moment, you reached deep inside

One shining moment, you knew you were alive

The highlights will likely include the thrill of victory with upsets by UAB and GA State. There will also be the agony of defeat as top seeded Villanova failed to make the Final Four. We will see the bright faces of the winners and the teary eyes of the losers. Each of these, in their own way, had “one shining moment”.

We have previously written how lawyers are potentially vulnerable to depression, suicide and substance abuse. Perhaps one way to avoid the negative thinking that sometimes pervades our profession is to focus on the shining moments we have had in our personal and professional careers. Maybe we have never hit the winning shot in the last seconds of the championship game, but we all have had our own shining moments. Maybe you met a personal goal after much hard work. Or, perhaps, you won a particularly difficult and hard fought case. Whatever it is, take a few minutes today to remember “One Shining Moment” in your life and career.