Not too long ago, on January 2, 2014, the South Carolina Court of Appeals released its opinion in Holland v. Morbark, Inc., et al, No. 2011-199928 (S.C. Ct. App. January 2, 2014).  Centering around design defect and failure to warn claims in the summary judgment context, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Four years ago today, on February 4, 2010, we here at Abnormal Use ran our very first Abnormal Interview with Law Professor Rory Ryan of the Baylor Law School in Waco, Texas.  (You can revisit that fateful first interview here.).  All these years later, we thought it would be fun to check back with Professor Ryan, so today, we continue our interview series, in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. The interview is as follows:

1.  What should attorneys practicing in federal court be aware of as we prepare to enter 2014?

This is a reputable divorce attorney in Mesa who regularly practice in federal court probably don’t need some professor telling them about the issues they encounter daily. But for the lawyers who regularly practice in state court, a few observations might be helpful.

First, as I observed in my first interview a few years ago, the pleading standards have changed. In (at least) most cases, a pleading is not sufficient if it merely restates the elements of a cause of action in terms of legal conclusions. Some level of factual specificity is required. Most academics hate this change, as reflected by the commentary. I don’t join the revolt against requiring some factual specificity. That is, I don’t think the rule announced in those cases would be a bad enacted rule. But it is curious (and dangerous) that the pleading rules were rewritten by the unelected nine outside the established procedures for amending the rules.

Second, know what you’re getting into before filing or removing based on a “substantial” federal question. The branch of federal-question jurisdiction involving state-created claims has been altered twice since 2006. Both decisions confidently announce workable tests. But when diving for the apparent pool of clarity, you’ll land in a mirage of sand. Both Grable and Gunn are both manipulable and clarify little with respect to the cases that needed clarifying. That sad, be aware that pre-Grable cases can only be argued in terms of how they fit into the modern so-called test.

Third, if you’re thinking that the answer to your federal problem is Rooker-Feldman, you’re probably wrong. Exxon v. Saudi Basic made irrelevant most lower-court cases interpreting the Rooker-Feldman doctrine. If you’re arguing Rooker-Feldman, there’s about a 99 percent chance you should be arguing preclusion.

2.  What do you think is the most underutilized federal practice tool or technique?

Permissive interlocutory appeals under 1292(b). They aren’t disfavored and provide a perfect counterbalance to the policies served by the final-judgment rule. Denied remand motions provide a good example. (The linked piece is a coauthored article, so I feel less dirty citing myself)

3.  What was the biggest surprise from the last U.S. Supreme Court term?

Last term lacked the big surprises from terms past. Some would suggest the voting-rights case was surprising. Others would probably point to the DOMA case. In the view of a procedure nerd, however, there was nothing shocking. Just the disappointment of Gunn v. Minton not taking the approach we urged in an amicus.

4. Are there any federal-courts doctrines that are underemphasized in law schools?

First of all, thanks for asking this question. [Disclaimer, I made up the question because I wanted to answer it.] The answer is “yes.” The doctrines surrounding parallel and subsequent litigation are traditionally ignored or relegated to notes that students ignore, while students spend weeks focusing on whether Congress could remove jurisdiction over abortion cases and other professor-playground areas. Take Colorado River abstention, for example. That doctrine matters.  Then, sprinkle in interjurisdictional-preclusion principles and the Anti-Injuncton Act’s relitigation exception. A student who leaves Federal Courts understanding those doctrines will, dare I say, be more equipped to help clients than one who has read nine articles on what the Supreme Court should have done 30 years ago with its appellate jurisdiction over state-law principles.

5.  What advice would you offer to lawyers practicing in the area of products liability?

Don’t ask a federal-courts professor for advice? And read the Bartlett decision from 2013; it seems kind of important.

BONUS QUESTION: You are now a professor at Baylor Law School, where you once matriculated.  How has the football program at Baylor changed during that time, and how did it achieve its successes?

They frequently throw the ball to the correct team now, and far few players spike themselves while running. Those two improvements have been important. The rest can be explained by the genius of Coach Briles and the talent pool in Texas. RGIII probably deserves honorable mention, too. When I arrived at Baylor, the basketball program was in scandal. Women’s basketball games weren’t major events. And the football team was every opponent’s choice for homecoming. Since then, women’s hoops have two national titles. The men have been to two Elite Eights. The football team has a Heisman winner, a Big 12 Championship, and a BCS appearance. Come to think of it, this success has a direct correlation with my presence. We’ll just call it causation.

BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.

Well, as you might recall, in last week’s edition of Friday Links, we mentioned that we would be focusing on legal themed album covers for a while, as it’s getting more and more difficult to unearth legally themed comic book covers. (Fear not, dear readers, we’ll return to comic book covers on Fridays in the not too distant future.). Today, we direct you to the cover of the single of “Judge, Jury, and Executioner” by Atoms for Peace, released not so long ago in 2013. You can’t get more legally themed than that, now can you? Atoms for Peace is a supergroup of sorts featuring Radiohead’s lead singer Thom Yorke and the Red Hot Chili Peppers’ bassist Flea. By the way, on this law blog, we’ve apparently mentioned Radiohead not once but six times before: here, here, here, here, here, and here. With us tossing out occasional references to such hip music, our indie street cred is surely preserved and you are estopped to argue otherwise, dear readers.

You may have heard that Quentin Tarantino’s latest script leaked onto the Internet. The Hollywood Reporter asks: “Does Quentin Tarantino have a Case Against Gawker?” Follow up: Can we still sue him for Four Rooms, or has the statute run?

Thanks again to Tim Pratt for his guest editorial on the proposed revisions to the Federal Rules of Civil Procedure. We published that yesterday, and if you missed, click here. Oh, and you can follow Tim on Twitter here.

We understand that the law of aviation is complicated and full of nuances. We understand that the federal government maintains a compelling interest in ensuring the uniformity of such regulations. We understand that there are legitimate privacy concerns about the use of drones in our airspace. But, even considering all of that, we were crestfallen to read this story: “FAA Stops Beer Drone Delivery.” Come on, FAA!

By the way, the SiouxsieLaw blog offers some initial thoughts on the purported “Cessation of Touring” agreement Motley Crüe is using to promoting its purported “Final Tour.” Says the writer: “While I admire the steps the Crüe have taken to end their band, I don’t exactly get it.  The four of them could just decide to rip up their agreement at any time and start touring again. It’s like four college girls agreeing to go on a diet together and putting it in writing.  You know eventually one of them is going to bring ice cream back to the sorority house.  And then after consuming the ice cream, they will collectively wipe their mouths with their binding agreement.” We’ll be weighing in on that fateful contract some time next week. How could we not?

I have always believed in the role of a lawyer to make things better – to maintain the high quality of our judiciary, improve efficiencies in how we practice law, better prepare law students for the practice of law, more quickly instill practical skills in young lawyers, and improve diversity.  Doing these things and whatever else inspires and impassions you will bring a spring to your step.  We may not get paid for it with currency, but the reward comes from realizing “you made a difference.”  That is reward enough. This is one such time.  There are important changes being proposed to the Federal Rules of Civil Procedure.  The proposals are part of a multi-year process that will hopefully culminate in a new set of rules by 2015.  But the opportunity to participate in the process is now upon us.  This is a call to arms to ensure your voice is heard by the Committee on Rules of Practice and Procedure, which has proposed the rule changes and invited public comments.

There are many significant changes being proposed by the Committee, but they have a common theme: Let’s get back to the essential principles of Rule 1 of the Federal Rules of Civil Procedure, which proclaims that disputes should be resolved in a just, speedy, and inexpensive manner.   This is not just a cost-saving measure.  We need to get back to a point where cases are decided on the merits and, yes, tried before juries.  The reduction in the number of cases being tried does not come from a fundamental distrust of our jury system.  To the contrary, when you look at the overall outcomes, our jury system has an enviable record of success.  But that journey can be riddled with excessive costs, disruption, and delay.   When standing at the starting line of a legal dispute, the client must look not just where the merits may take the case, but also what must be endured to reach the point of resolution.   On balance, that can lead to a decision to settle a weak case on the merits rather than place the merits in the hands of the jury far down the road.  A survey conducted for the Association of Corporate Counsel found the 80 percent of general counsel and chief litigation counsel disagree with the statement:  “Outcomes are driven more by the merits of the case than by litigation costs.”

I am one of them.

One significant change proposed by the Committee will limit the scope of discovery under Rule 26.  The seemingly limitless standard of the current rule – allowing discovery of any matter relevant to the subject matter of the lawsuit, including anything that is reasonably calculated to lead to the discovery of admissible evidence – drives over-reaching discovery requests and overly-broad preservation notices.  The new proposal would limit discovery to the “claims or defenses” in the lawsuit and “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  These are important changes that will allow discovery to be scaled to each individual case. There are also some significant proposed changes to Rule 37(e) which revise and clarify the circumstances under which a party can be sanctioned for failure to preserve discoverable information.  The proposed rule would permit sanctions only if the failure to preserve was “willful or in bad faith” and caused “substantial prejudice.”  The rule would also permit courts to order lesser but undefined “curative measures” under some circumstances.   he proposed changes to Rule 37(e), though not perfect, are the right step down the path of allowing cases to be decided on the merits rather than through discovery gamesmanship.

I urge you to engage.  You surely have a perspective to share that will be of value to the Committee.  But do so quickly: the public comment period lasts only until February 15, 2014.  Your comments should be submitted to the Committee directly to its website. If you need more details and context, feel free to go to the website of Lawyers for Civil Justice, an excellent organization where I serve on the Board.

Get involved.  Make a difference.  That is our responsibility as lawyers–improving our profession and the system of justice within which we are privileged to participate.

BIOGRAPHY: Timothy Pratt is a guest author at the Abnormal Use law blog. He is the general counsel of the Boston Scientific Corporation and president of the Federation of Defense and Corporate Counsel.

In the past, we here at Abnormal Use have been critical of failure to warn claims.  To all of those claims, we now apologize.  Compared to the new suit against Nike , these other claims are as monumental as Marbury v. Madison.  According to a report out of NBC News, Sirgiorgio Clardy, an Oregon-based pimp sentenced to 100 years in prison for brutally beating a john with a Nike shoe has filed suit against the company alleging that Nike failed to warn that its shoes could be used as a dangerous weapon.  Apparently, had Nike provided such a warning, Clardy may have refrained from repeatedly stomping on the face of a client.   He is seeking $100 million due to Nike’s perceived omission.

Clardy apparently got the wise idea to sue Nike based on the jury’s classification of his shoes as a “dangerous weapon” in the criminal trial in order to ensure he received a maximum sentence.   We imagine if Clardy found some way to inflict the same injuries on the victim with a plastic spoon, it would have arrived the same classification.  Thankfully for Nike’s sake, it was not a party to the criminal suit and shouldn’t be deprived of the opportunity to protect its interests civilly.

Our criticism of failure to warn claims is the notion that requiring warning labels for many of these allegations is superfluous.  Many hazards are just too obvious to necessitate a warning.  This case takes the notion to the stratosphere.  We have watched enough episodes of “The Walking Dead“ to know that almost any object can be used as a weapon if the assailant is creative.  When a criminal uses an object in a way no reasonable person intended, then there is no need to warn of the horrid use. We understand why manufacturers should warn of certain dangers; those warnings serve a necessary purpose.  We doubt, however, that anybody would see Clardy’s suit as analogous to those situations.

We would say that we will keep you updated as this case progresses, but we all know how it will turn out.

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

We’ve commented before how difficult it is to find new legal themed comic book covers week after week after week for our Friday Legals posts. Well, today, we decided to be a bit different and post a legally themed album cover. This is big news. So, above, dear readers, you’ll find the Bobby Fuller Four’s I Fought The Law, released way, way back in 1966. According to the Wikipedia, the album was named for the song of the same name, which has a storied history in American popular culture:

“I Fought the Law” is a song written by Sonny Curtis of the Crickets and became popularized by a cover by the Bobby Fuller Four, which went on to become a top-ten hit for the band in 1966 and was also recorded by the Clash in 1979. The Bobby Fuller Four version of this song was ranked No. 175 on the Rolling Stone list of the 500 Greatest Songs of All Time in 2004, and the same year was named one of the 500 “Songs that Shaped Rock” by the Rock and Roll Hall of Fame.

Our favorite version, of course, is the one by The Clash, but we’ve got to give it to BFF for popularizing the song as they did.

In case you were wondering, “Yes, Emoji Death Threats Are Admissible in Court.” By the way, we here at Abnormal Use are decidedly anti-emoji.

Three years ago this week, on January 25, 2011, we published our Stella Liebeck McDonald’s Hot Coffee Case FAQ. In it, we attempted to tell the tale of that infamous case using only the original court documents and early 1990’s media coverage. Our original introduction to that piece:

First entering the public consciousness in 1994, the Stella Liebeck trial, known as the McDonald’s hot coffee case, has become such a fixture of litigation lore that many are unaware of the basic facts of the case, or even where and when it was tried. Litigated and reported upon before the rise of the Internet, much of what appears online about the case is the worst sort of unsourced speculation and conjecture. Our friends at Overlawyered have done an excellent job over the years dispelling the various myths about the case, including those that have arisen suggesting that the industry standard was to serve coffee at temperatures lower than that of McDonald’s. In an effort to publish some of the basic facts of the case, we here at Abnormal Use have created the following FAQ file regarding the matter. In so doing, we have relied solely upon the original pleadings and motions in the case and some contemporary news coverage.

So in light of this anniversary, go back and take a look at our first – and only – FAQ.

We would have liked to have observed the Google Glass traffic ticket trial. We suspect there will be similar trials in the future.

Carnival Cruise Lines recently scored a big legal victory in the South Carolina Supreme Court against several Charleston preservation and environmental groups.   The Plaintiffs claim that a 2,000 passenger Carnival cruise ship that uses Charleston as its home port is a nuisance.  The Court found that the Plaintiffs lacked standing because they were alleging a general public nuisance.

The Plaintiffs in this case alleged that the mammoth cruise ship  caused traffic congestion while loading and unloading its 2,000 passengers in downtown Charleston.  They also claimed that it created air pollution and blocked views.  Anyone who has been to downtown Charleston on a day when the cruise ship was loading up can certainly confirm its effect on traffic.  The several story high ship also blocks some views of the river.  However, the court never reached the underlying nuisance claim. Instead, the Court disposed of the case by holding that the Plaintiffs lacked standing because they were alleging a general public nuisance.  In South Carolina, as in most states, no civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others.  Rather, a plaintiff must allege a particularized harm to his or her legally protected interest.

As reported by Reuters, one of the lawyers for the Plaintiffs, Blan Holman, has said that some individual property owners are considering refiling the lawsuit as individuals.  Presumably, those property owners will attempt to allege a private nuisance for show that the cruise ship specifically interferes with the enjoyment and use of their property.

The case is Carnival Corp., et. al. v. Historic Ansborough Neighborhood Ass’n, No. 2011-197486 (S.C. Nov. 19, 2013).