Last week, an Oakland County, California jury ruled in favor of the defendants in a wrongful death case involving synthetic marijuana. The Estate of John Anthony Sdao filed suit against Yassmine Wholesalers, the distributor of the substance, and a local gas station after Sdao, 20, committed suicide after smoking K2, a brand of synthetic marijuana. The sale of synthetic marijuana was legal at the time of the event, but it has now been banned by California law. The plaintiff presented evidence at trial of numerous other suicides which allegedly occurred as a result of using the substance. Apparently, the jury didn’t buy it under the facts of this case.

We here at Abnormal Use have not seen the verdict form nor are we aware of the full scope of evidence presented at trial. Lee Ann Rutila, who represented Yassmine, had this to say about the result:

We were pleased with the result, and I guess we’re not surprised. . . . They were basically unable to say that the suicide really wouldn’t have happened otherwise. It could have happened with or without the K2. They couldn’t put that as being the contributing factor.

Dean Kallas, who represented the gas station that was accused of selling the product to Sdao, added:

It always appeared that the suicide was unrelated to the product, and that’s been our defense all along, and that’s why I believe the jury came to the conclusions they came to.

The plaintiff apparently plans to appeal the verdict. However, the reports are not clear as to the grounds of any such appeal.

The case of synthetic marijuana is an interesting one. In the shadow of Four Loko, it is difficult to gauge how a jury may handle a product which, while legal at the time of the injury, has been banned by the time of trial. In this case, the personal accountability of the decedent apparently also played a role in the jury’s decision. Proving that it was the product, and not the decedent’s own tendencies, that caused the suicide is a difficult burden to bear.

Despite the result in this trial, we expect to see more of these synthetic marijuana cases in the future. We will be sure to keep you posted.

Beaufort. Comté. Reblochon. Abondance. Vacherin Mont d’Or. Salers. Dry Monterrey Jack. Parmigiano Reggiano. Do you know what these names have in common? For those who are not hip to the niche, artisan cheese market, each of them is a type of cheese which is made by, among other things, being aged on a wood-board.  Now, can you imagine salads, sandwiches, grits, crackers, pasta, or wine without these tasty concoctions? While those names are a mouthful in more ways than pronunciation alone, personally, the thought of a world without easy access to Parmigiano Reggiano would not be a place of which I would want to be a part.  However, per a January communication from the Food and Drug Administration (FDA), that contemplation could become a reality. Based on a response to a question from the New York State Department of Agriculture and Markets, the FDA appeared to sound the death knell for wood-board aged cheese crafted in or imported into the United States.  Specifically, the FDA stated that “[t]he porous structure of wood enables it to absorb and retain bacteria, therefore bacteria generally colonize not only the surface but also the inside layers of wood. The shelves or boards used for aging make direct contact with finished products; hence they could be a potential source of pathogenic microorganisms in the finished products.”  This position was based upon an interpretation of 21 C.F.R. 110.40(a), a regulation about food equipment and utensils which states:

(a) All plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and . . . shall preclude the adulteration of food with . . . any other contaminants. . . . Food-contact surfaces shall be maintained to protect food from being contaminated by any source. . . .

Like wheels of cheese aging for months on wood racks, the news of the FDA’s take on wood-board aging spread slowly to the cheese community, but like the pungent aroma of Beaufort, once it did, artisan cheese craftsmen found themselves with worse heartburn than at a habanero cheddar tasting.  However, in an effort to stave off the effects of enforcement by the FDA, the craftsmen’s advocate, the American Cheese Society, released a position statement wherein it stated that wood-board aged cheese meets food safety standards and that the FDA should give proper notification, hold a proper comment period, review scientific data, and include consideration of industry stakeholders before modifying its interpretation or implementation of its regulations. In a quick response, the FDA clarified its interpretation of its official policy to New York State Department of Agriculture and Markets. This “clarification” declared the FDA did not intend the communication to be “an official policy statement,” but instead as “background information on the use of wooden shelving for aging cheeses and as an analysis of related scientific publications.”  However, the FDA did not back away completely from the idea of ending the use of wood shelving.  Instead, it noted it has pursued enforcement actions when it found the presence of Listeria monocytogenes at facilities that used wood shelving.  The FDA claims that since 2010, more than 20 percent of inspections of artisanal cheesemakers have revealed the presence of Listeria monocytogenes. Currently, no FDA enforcement actions directly allege that wood shelving caused contamination, yet it appears the FDA has left that option open. Should the FDA be able to make a case that wood shelving is the direct cause of a harmful contamination, it can still take administrative or judicial action to enforce its regulations.  Administrative actions include product recalls, withdrawals of product approvals, or license revocations. Judicial actions include seizures of violative products, injunctions, criminal prosecutions, and certain civil money penalties.  It is unclear how the FDA would go about enforcement against the artisanal cheese community; however, generally, the FDA looks to administrative remedies first. Therefore, although the FDA has ended the initial uprising over this issue, artisan cheesemakers will need to remain aware of the FDA’s next moves.  Hopefully, the FDA will give the cheesemakers an opportunity to present their generations-old argument that wood shelving, as a porous surface, absorbs excess humidity and prevents unwanted mold as well as adds to the flavor while still remaining healthy. The future of parmesan depends on it.

When it rains, it pours for GM.  Of course, if you’re a reader of a products liability blog, then you’re certainly already familiar with the myriad difficulties facing GM in various courts across the country these days. A recent class action suit filed in California alleges that GM’s actions in handling the alleged ignition switch defect have resulted in a devaluation of all GM cars, which will cost GM customers when it comes time to resell their vehicles.  Surely you saw this one coming, right? The named plaintiff in the suit is Anna Andrews, and the firm that filed the suit on her behalf is Hagens Berman Sobol Shapiro, LLP.

The lawsuit purports to seek at least $10 billion, which is apparently over twice GM’s net earnings for 2013.  It will be interesting to see how this suit plays out.  We at Abnormal Use see this as a slippery slope in that it could lead to a class action suit by owners of a product any time a brand receives negative publicity, finds itself subject to a recall, or otherwise makes headlines relating to a defect. Only time will tell.

(Hat Tip: Law360).

“Chaos in the Court!” proclaims the cover of Marvel Team-Up #51, published way, way back in 1976. In that issue, Spider-Man and Iron Man join forces to defeat a villain in a courtroom. Look closely in the top right hand corner and you’ll see the judge at his bench desperately attempting to dodge the bad guy. We can only assume that the people depicted fleeing at the bottom of the cover are lawyers or other courtroom personnel. We may need to investigate how this one turned out, but we suspect superhero battles violate the court’s local rules. If you’re curious, you can find a summary of this issue here.

You need to read about this odd lawsuit involving Eddie Murphy.

An interesting – but likely doomed – argument: “Attorneys for two people convicted in a federal mortgage fraud case are asking for a new trial, in part because they say their clients’ rights were violated when prospective jurors who did not meet the dress code at the federal courthouse in Orlando were turned away by security.” For more, please see this news article by Lyda Longa of The Daytona Beach News-Journal.

If you’re feeling some nostalgia for New Coke, you might be in luck. Click here for a trip down memory lane. (Or, if you’re a young associate, and you’ve never heard of New Coke, click that link, as well.).

Don’t forget! We here at Abnormal Use are at the North Carolina Bar Association Annual Meeting in Wilmington, North Carolina today! If you see us, say hi!

As victims of identity theft can tell you, credit agencies can be difficult.  The State of Mississippi feels your pain and believes that it is time to put the system on trial – starting with Experian.  Last month, Mississippi filed a lawsuit against Experian alleging that it is violating the Fair Credit Reporting Act (FCRA) by failing to maintain proper procedures to verify the accuracy of credit information and correct mistakes.

The suit was initially filed by the Mississippi Attorney General in state court, but it has since been removed to federal court.  The lawsuit accuses Experian of knowingly including flawed and inaccurate data in the credit reports of millions of consumers.  However, as we all know, just running a shoddy business is not illegal.  The legal problems come into play because Experian is allegedly offering no straightforward way for users to correct the flawed or inaccurate data in its reports.  If these allegations are true, that would be a violation of the FCRA.

Experian is the largest credit reporting agency and has annual revenues of nearly $5 billion.  According to the Associated Press, Experian has informed investors that although it tries to comply with the law, “[w]e might fail to comply with international, federal, regional, provincial, state or other jurisdictional regulations, due to their complexity, frequent changes or inconsistent application and interpretation.”

Well, the North Carolina Bar Association Annual Meeting begins this week in Wilmington, North Carolina. Big news: We here at Abnormal Use and Gallivan, White, & Boyd, P.A. will be there in person, and we look forward to seeing you there. You can see the full agenda for the meeting here. What better place for a North Carolina law blog to be? Our editor, Jim Dedman, will be attending, so if you see him, be certain to say hello! He’ll be tweeting from both his personal Twitter account (@JimDedman) and our firm’s Twitter account (@GWBLawFirm) using the meeting’s official hashtag, #NCBAAM14.

Last year, we here at Abnormal Use reported on the legal battle between ski resort operators in Park City, Utah.  It all started when Park City Mountain Resort (PCMR) inadvertently failed to renew a 50 year lease for the land upon which its resort is located.  Unfortunately for PMCR, that land is owned by Talisker, a competitor who has since leased the land to Vail Resorts.  Tailsker and Vail recently scored what could prove to be a knockout blow against PMCR.

In May, a Utah court ruled that PMCR officials had indeed failed to renew their sweetheart lease for a majority of their ski terrain.  Apparently, the court was not too impressed with PMCR’s “honest mistake” defense as a justification for being a few days late in renewing the fateful lease agreement.  As result of PMCR’s failure to properly renew, the court held that Talisker had the right to lease the upper mountain to a new operator – which is exactly what it did in refusing to lease the land to PMCR and instead leasing it to Vail.  Of course, PMCR has publicly stated that it will appeal the ruling. We’ll see what happens there.

Regardless of the ultimate results of the proceeding, the real losers may be the residents of Park City and the multitudes of skiers who enjoy the mountain each year.  Even if Talisker and Vail prevail, it won’t be enough to ensure the mountain stays open.  Although Talisker owns the majority of the land at issue, PMCR actually owns the property at the base of the mountain, and without that land, it will be virtually impossible for Vail to run a resort there.  The CEO of PMCR’s parent company has repeatedly stated that the land at the base of the mountain is not for sale.

Last week, we wrote about a new trademark infringement lawsuit filed by Hershey against marijuana-candy manufacturer TinctureBelle. The gist of the Hershey’s lawsuit is that TinctureBelle allegedly ripped-off the branding of Hershey candy in marketing the pot candy. Now, TinctureBelle President Char Mayes has responded to the lawsuit with the following statement:

The lawsuit from Hershey came as a huge surprise to us because we changed our entire label line approximately 6 months ago, long before these allegations surfaced last week. Our new packaging looks nothing like Hershey’s or anyone else’s. . . . The suggestion made by some media reports that our products are available to children, and even sold side-by-side with Hershey products, is dumbfounding, and shows a profound lack of awareness of how infused cannabis products are regulated, manufactured, and sold under Colorado’s strict regulatory regime.

Mayes provided the Washington Post with the following photos as evidence of the change:

We here at Abnormal Use must admit that we much prefer the original Hersheyesque packaging to the TinctureBelle revisions. Of course, opinions similar to these are probably what inspired the suit in the first place. If the packaging was, in fact, changed six months ago, however, what is Hershey really seeking to accomplish? A share of TinctureBelle’s pre-alteration proceeds? Seeing as all marijuana has only been legal in Colorado for six months and, thus, the only pre-alteration proceeds would have been from the medicinal sale of the candy, we doubt Hershey will have a lucrative end game.

This lawsuit has all the makings of a Bucky Balls-type fight. We will be sure to keep you posted as events transpire.

Oh, my. It’s Friday the 13th, which means that we must pause in apprehension to consider the implications of such a frightful day. It also gives us an opportunity to talk about scary movies. Above, you’ll find the cover of Friday The 13th: Fearbook, published not so long ago in 2006 by Avatar Press. Trust us when we say that it one of the few Friday The 13th comic book covers we felt comfortable sharing with you, our dear readers. The rest, of course, were NSFW. On a similar occasion, back in 2013, we wrote:

It is Friday the 13th. Yikes. We thought about using the cover of one of the many Friday The 13th comic book adaptations in today’s post, but they were all too violent.

Very true. Earlier that year, we exercised a similar level of restraint:

By the way, don’t forget that today is Friday the 13th. Be careful out there, folks. (Please note that we resisted the urge to post the cover of a Friday The 13th comic book adaptation.).

In 2012, we posted a relatively tame Superboy cover but warned:

Today is Friday the 13th.  Beware.

All that said, on Friday, July 13, 2012, we dedicated our Friday Links post to the Friday The 13th film series, so please see here for that.

On an unrelated note, Plaintiff’s lawyers are now using Google Glass to create point of view “day in the life” videos for their clients to play before the jury. For more on that development, see here.

The TortsProf Blog notes that New York University law professor Cathy Sharkey has posted two new pieces to SSRN, including Tort-Agency Partnerships in an Age of Preemption and Agency Coordination in Consumer Protection. For more on that, please see here. We mention this, of course, because way, way back in March of 2011, we interviewed Professor Sharkey, and you can revisit that piece here.

Big news! Yoko Ono has settled a lawsuit!

Kevin Underhill’s funny book, The Emergency Sasquatch Ordinance, is now available as an e-book. See here for our interview with Kevin about this project.

A hot topic of recent months has been the legalization of marijuana. After the State of Colorado legalized it, we here at Abnormal Use wondered what legal problems might arise when those laws went into effect earlier this year. We certainly suspected that there would be litigation, but a new suit filed in federal court  is not exactly what we had in mind. The Hershey Company has filed suit against TinctureBelle, LLC, alleging that the Colorado candy manufacturer’s marijuana-infused chocolates improperly mimic the names of famous Hershey products. According to a report from Denver’s ABC-7:

The lawsuit argues: “Defendants, who are well aware of the fame and popularity of these Hershey products and marks, are manufacturing and selling cannabis- and/or tetrahydrocannabinol-laced chocolate and candy products using names, marks and designs that are knock-offs of Hershey’s famous REESE’S, HEATH, ALMOND JOY and YORK trademarks and trade dresses, in order to increase sales of defendants’ cannabis and tetrahydrocannabinol candy products, draw additional attention to their products, confuse consumers as to the source of their products, call to consumers’ minds Hershey’s famous and beloved brands, and otherwise to trade on the goodwill of Hershey and its brands.”

We understand Hershey’s concerns about trademark infringement, but surely it is an honor to be the first company honored by legal pot candy. It is difficult to get too upset with TinctureBelle when its creativity inspired names such as “Hashees” (Reese’s) and “Ganja Joy” (Almond Joy). Again, Hershey has the right to be concerned about trademark confusion, and we certainly understand the basis for the litigation. On the other hand, we seriously doubt consumers are buying these products because of their resemblance to Hershey products. After all, TinctureBelle has its own secret ingredients.