“There’s the jewel thief — He’s escaping in the stolen ‘Flying Patrolman ‘Copter!” yells someone on the cover of Mr. District Attorney #60, published way, way back in 1957. Here’s our question: Why is the district attorney on the roof of the building apparently chasing a jewel thief? Isn’t he making himself a witness to a crime which would preclude him from prosecuting the thief?

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.

Okay, so, Macaulay Culkin released a pizza themed tribute to the Velvet Underground. Much confusion followed. Take a listen right here.

What happens when a brewery sues a moonshine maker for trademark infringement? See here. (Hat tip: Beer Pulse).

Thanks to the TortsProf blog for linking our recent interview with Professor William Janssen.

Rest in peace, T.R. Fehrenbach. If you’re into Texas history, you must go read his masterpiece, Lone Star: A History Of Texas And The Texans.

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

Ever so often, an appellate court blesses us with an opinion that is witty and full of subtle humor. With its recent opinion in Bisbano v. Strine Printing Co., Inc., No. 13-1722 (8th Cir. Nov. 27, 2013), the First Circuit did just that. Before diving into the opinion, here is a quick statement of the facts. Bisbano was a commercial printing sales representative who championed a national drug store chain as a major client for nearly two decades. Bisbano worked for several printing firms over the years, bringing the client’s business along with him at each stop. Prior to his employment with Strine Printing Co. (“SPO”), Bisbano had secretly paid the car lease of a printing department employee of the chain while he was working for his former employer. During the course of an internal review of printing practices, the client discovered Bisbano’s roll in the apparent kickback and he confessed to the act. Nonetheless, the client decided that it would no longer do business with him. Shortly thereafter, SPO fired him. In turn, Bisbano filed suit against SPO, asserting claims of unjust enrichment, tortious interference with contract, breach of contract, and intentional and negligent misrepresentation. The district court granted SPO’s motion for summary judgment on each claim, and Bisbano appealed. In the well-drafted opening paragraphs of the opinion, the Eighth Circuit described the same as follows:

[S]ales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants.

So, right off the bat, you see where this one is going. On appeal, the crux of Bisbano’s arguments were two-fold: (1) SPO interfered with his business relationship with the client by firing him, and (2) SPO misrepresented to him that he would remain employed with the company as long as he brought in the client’s business. The Court wasn’t sympathetic to either theory, finding that Bisbano’s assertions were factually inaccurate and not a basis for relief under any of the causes of action. The Court indicated that the client independently ended its relationship with Bisbano prior to any action by SPO and, thus, SPO did not interfere with the business relationship by firing him. As the Court eloquently stated:

It is a matter of chronology, not a question of disputed fact, that SPC could not have induced [the client] to break off a relationship that [the client] already had relegated to the scrap heap.

Likewise, the Court found that SPO neither breached the employment contract by firing him nor made any misrepresentations by promising to employ him as long as he brought in the client’s business because it had fulfilled its promise. Once the relationship with the client had ended, so to, did any responsibility SPO had to employ Bisbano. According to the Court:

[T]hese losses, by any leap of even the most agile imagination, cannot be said to flow from the plaintiff’s reliance on SPC’s representations. The losses unarguably flowed from [the client”]s discovery of the plaintiff’s corrupt relationship with a [an official of the client] and [the client’]s ensuing decision to sever all ties with the plaintiff. Seen in this light, the plaintiff was the author of his own misfortune.

Well-played, First Circuit. Well-played, indeed.

Litigation in the United States can often be a protracted affair.  Some of the more complex cases may span decades before reaching conclusion.  For example, the case of Bigfoot, or Sasquatch, has been pending for centuries without any real resolution.  According to the Encyclopedia Britannica, the first Bigfoot case, David Thompson v. Squatch was first initiated in 1811 by British explorer David Thompson.  Since then, the number of cases has snowballed and costly discoveryhas been conducted ever since by organizations such as the North American Wood Ape Conservancy.

Courts around the country have struggled with how to deal with Bigfoot.  Some courts have implicitly acknowledged Bigfoot’s existence and have equated it to a contract.  See Dumont Tel. Co. v. Power & Tel. Supply Co., C 13-3030-MWB, 2013 WL 4516428 (N.D. Iowa 2013) (“The contract at the heart of this case is a lot like Bigfoot . . .”).  Some courts have taken a more traditional, strict constructionist approach to interpretation of Bigfoot.  See, e.g., Doyle v. Commr., New Hampshire Dep’t of Resources &Econ. Dev., 37 A.3d 343, 345-46 (N.H. 2012) (“Bigfoot, also known as Sasquatch, is ‘a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada. . . .’”)  Other courts have engaged in what some would call judicial activism on the issue and have concluded that Bigfoot simply does not exist.  Peracchi v. C.I.R., 143 F.3d 487, 491 (9th Cir. 1998) (“. . . negative basis, like Bigfoot, doesn’t exist.” ).  In any event, trial courts need resolution on the issue once and for all so they can decide Bigfoot-related evidentiary disputes and the like.  Park v. CAS Enterprises, Inc., CIV 08CV385 DMS NLS, 2010 WL 55888 (S.D. Cal. 2010) (“Ultimately, Park argues that there is no evidence the DB50 ever existed, and ultimately compares it to a ‘video of Sasquatch or the Loch Ness Monster, [where] actual proof of the DB50 is apparently impossible to capture on film.’”).  When courts are this divided, a decision needs to be made.

South Carolina is not typically thought of as a bellwether state; however, the state may now have the opportunity to resolve the Squatch issue once and for all in the recent case of CSPRI v. Squatch. According to reputable news sources covering the case, “[e]vidence of Bigfoot’s existence has been found in Oconee County [South Carolina], according to the Carolina Society for Paranormal Research and Investigation.” Legal scholars are engaging in heated debate about whether this newly discovered evidence will be sufficient to withstand the inevitable summary judgment motion.  In the state courts of South Carolina, “[s]ummary judgment is proper if, viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Preservation Capital Consultants, LLC v. First Am. Title Ins. Co., 2012-209186, 2013 WL 6091617 (S.C. 2013).  So what is this bombshell evidence?  Is it enough to present a genuine issue of material fact as to the existence of Bigfoot?

Apparently the Carolina Society for Paranormal Research and Investigation (CSPRI) first determined that the woods of Oconee County, South Carolina would be a “perfect place” for Bigfoot.  They determined this based on the observation that Bigfoot constructed various “wood structures” and “nests” in the woods of Oconee County, and that footprints have been discovered which are “too large and wide to be normal human.”  According to CSPRI, “intertwined [tree] limbs” were also a dead giveaway because, among other things, “a bear has no thumbs . . .” Presumably, although it is not explicitly set forth in any of the information proved by CSPRI, Bigfoot does in fact have thumbs.

My take:  Since summary judgment is discretionary, this one is a toss-up.  Evidence of Bigfoot’s existence has been presented. There does not appear to be a challenge to CSPRI’s methodology or qualifications, so the decision will hinge upon whether the weight of evidence presented is sufficient. Personally, I still have questions.  Are these wood structures and nests, which were purportedly constructed by Bigfoot, currently occupied by a Bigfoot?  There is no evidence in the record that Bigfeet typically build homes and then abandon them.  Were they spec nests for which Bigfoot just couldn’t find a buyer?  The footprints found in the woods are above-average size for human feet, but what is the average size of the foot on an average Bigfoot? Why is Bigfoot twisting around all of the tree limbs in our South Carolina woods?  Is this destructive behavior typical of Bigfeet?  As it stands, I do not believe that this is enough to withstand a motion for summary judgment.

Perhaps sensing the same, CSPRI has scheduled a “full-blown hunt” for Bigfoot on December 14, 2013.  As additional discovery is already scheduled, the Judge may see the motion for summary judgment as premature and may revisit the issue after the full-blown hunt.

We’ve previously written about the alleged dangers of portable gas cans and the 5 cent part that could make them safer.  Last week NBC’s Today Show ran an interesting segment showing some of the scientific testing that has been done with regards to the potential for explosion.   According to the segment, there have been 11 reported deaths and 1,200 emergency room visits involving gas can explosions during the pouring of gasoline since 1998. The  danger allegedly stems from what is known as “flashback.”   Tests conducted at Worcester Polytechnic Institute’s labs show that under certain limited conditions a flashback explosion can occur inside a plastic gas can, when gas vapor escaping the can contacts a source of ignition such as a flame or a spark.  From the testing, it appears that this only happens when there is a small amount fuel left in the can and it is tilted a severe angle.

The solution that has been proposed by a number of experts and plaintiff’s attorneys is a what is known as a “flame arrester.”  It is basically a metal mesh plug that keeps a flame ignited outside of the can from traveling into the can and causing an explosion.   The “gas can industry” is supposedly still looking into whether flame arresters are necessary or effective.   All gas cans currently have general safety warnings printed on them telling users to keep away from flames and electric motors.

The Consumer Products Safety Commission’s official position since 2009 has been that is that it is investigating whether flame arrester should be mandatory.  However,  a spokesperson from the CPSC recently told USA Today that they would like to see  standards commission incorporate flame arrestor technology in consumer gas cans.

You know, we usually feature law inspired comic book covers in our weekly edition of Friday Links, but today, we thought we’d showcase a legal themed beer label. What better name for a beer than voter fraud? Apparently, Asheville, North Carolina’s own Burial Beer Company teamed up with Oskar Blues Brewery – the Colorado brewery with a heavy presence in Western North Carolina – to create this new concoction. Unfortunately, we’ve yet to try it! For more on the Voter Fraud beer, see here and here.

Headline of the Week: “The Hells Angels Are Surprisingly Litigious.” Now those will be some eventful depositions, we suspect.

You can check out the December 2013 issue of the South Carolina Bar News here! On pages 18 and 19, you can see our own Stuart Mauney’s article on “Revisiting The Lawyers’ Epidemic: Why Lawyers Are Vulnerable To Depression, Suicide, And Substance Abuse.” (That article originally appeared right here at Abnormal Use back in October of this year.)

Samantha Gilman of The Charlotte Observer reports: “Workplace injuries and illnesses drop in North Carolina.”

Get this: A blog called iClass cited our prior post on a federal court using the word “selfie” in a judicial opinion. How about that?

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant’s] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company’s delay because it spent substantial amounts of time and money pursuing the litigation.” After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company’s] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to law professor William M. Janssen of the Charleston School of Law in Charleston, South Carolina. The interview is as follows:

1. What is the most significant new development in South Carolina products liability law in recent years? What about in the regulation of medical devices?

Products liability law continues, nationally, to be a discipline in great flux, and the list of “significant new developments” could be a really lengthy one.  To my eye, among the top candidates for this distinction are the following six:

A.  Branham v. Ford Motor Company (S.C. S.Ct. 2010): The decision to reformulate our products design defect theory from a consumer-expectations/risk-utility composite into a far more predictable RAD-based risk-utility model has added great clarity to this realm of local products theory.  Now, the pleading and proof expectations for this theory are fixed: a claimant must demonstrate the presence of a feasible alternative design (which, we’re now instructed, installs an inquiry that evaluates “cost, safety and functionality”), and then show how this alternative design “would have prevented the product from being unreasonably dangerous.”  This reformulated approach to testing for design defectiveness adds clarity and more guided decision-making to what is otherwise a nearly boundlessly subjective undertaking.

B.  State v. NV Sumatra Tobacco Trading Company (S.C. S.Ct. 2008): In this decision, our Supreme Court took sides in the great O’Connor/Brennan Asahi stream-of-commerce debate over the proper boundary-line set by the Due Process Clause in “stream”-based personal jurisdiction contests.  As “stream” theory will frequently (nearly always?) involve a products claim, settling this core inquiry over the reach of judicial power is critically useful.  By my reading, our Supreme Court took us even further than Justice Brennan had envisioned in Asahi.  Our Court reasoned that “simply placing a product into the stream of commerce is consistent with the Due Process Clause,” thereby satisfying the constitutional prescription placed on the exercise of personal jurisdiction over nonresidents.  (Sumatra Tobacco, Fn. 5)  [By comparison, Justice Brennan had qualified his view with the admonition that the Due Process Clause would be satisfied in “stream” cases “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State.”  If our Supreme Court’s unqualified “stream” approach is applied literally, it would not matter whether Sumatra Tobacco knew that its cigarettes were being marketed in South Carolina or not – arguably, a much broader approach to the Due Process Clause than Justice Brennan had advocated.]  With the Court again brutally fractured two terms ago in J. McIntyre Machinery v. Nicastro, the prospects for a decisive ruling from Washington that could supplant Sumatra Tobacco now seem dim.

C.  Twiqbal (U.S. S.Ct. 2007 & 2009): More below.

D.  Federal Preemption: The uncertainties in the evolving landscape of federal preemption theory are hard to overstate.  In Buckman (2001) and Geier (2000), the U.S. Supreme Court seemed poised to give federal preemption theory a broad and sweeping application that would compromise broad swaths of run-of-the-mill products claims in prescription-only cases.  The Court seemed to retrench meaningfully in Lohr (1996) and Wyeth v. Levine (2009), only to then press out again in Riegel (2008) and Bartlett (2013).  All told, the federal preemption story is a byzantine one of 5-4 decisions, blistering dissents, and shifting majorities.  For litigants in prescription drug and device product cases, federal preemption remains a fundamentally unstable area of constitutional law.

E.  Off-Label Prescription Drug/Device Promotion and the First Amendment: The federal government and its principal drug and device regulator, FDA, have insisted that aggressively policing the off-label promotion border is critically important in safeguarding the new-drug and new-device approval process deemed essential to a safe pharmaceutical and medical device marketplace.  The Supreme Court’s recent decision in Sorrell v. IMS Health (2011) and the Second Circuit’s long-awaited opinion in United States v. Caronia (2012) raise the specter that the Free Speech Clause may have an important role to play in the scope of regulation of off-label promotion.  Both decisions intimate that a manufacturer, promoting off-label in a manner that is indisputably truthful and non-misleading, may find a constitutional vanguard against both criminal and civil liability.  The consequences of such an outcome, caution FDA, could decimate the agency’s continued effectiveness in protecting our drug and device supply.  The final battle in this war is yet to come.

F.  S.C. Rule of Civil Procedure 30(j) (2000): In promulgating Rule 30(j), our Supreme Court noted that it was requiring “attorneys in South Carolina to operate under one of the most sweeping and comprehensive rules on deposition conduct in the nation.”  The Rule has lived up to the billing.  Products litigations are very discovery-laden enterprises, and the restrictions imposed on attorney behavior by Rule 30(j) certainly impact the reach and practice of deposition discovery in our State.  Because depositions are the most agile and unpredictable of all discovery tools, the substantial constraints on defensive lawyering imposed by Rule 30(j) qualifies, by any measure, as one of the “significant new developments” in our discipline.

2. How has the evolving Twiqbal jurisprudence affected the litigation of mass tort or mass pharmaceutical cases?

A growing body of data suggests that in employment discrimination, civil rights, and pro se cases, Twiqbal may be having a statistically significant impact in removing cases from the federal docket prior to the filing of an answer and the pursuit of discovery. Opinions vary on whether this pre-answer culling is something to be cursed or cheered.  A few years back, I conducted an industry-targeted study on the effect of Twiqbal on pharmaceutical and medical device litigation.  (71 La. L. Rev. 541).  My conclusions were mixed.  In studying 264 drug and device cases released over 15 months post-Iqbal, I found that nearly 80 percent of the time, Twiqbal had no perceivable decisional impact on whether a drug or device pleading survived or failed.  By 20 percent is still a large number, and in those cases, I could not conclude with any confidence that Twiqbal had played no role in the outcome.  That said, it remained unclear to me following this study whether it was the “plausibility” requirement of Twiqbal that was principally influential, or merely the “no-conclusions” requirement of Twiqbal.  If the latter (as I suspect, in many cases, it was), that portion of the Twiqbal approach added nothing, in truth, that was particularly new or different than the incumbent pleading-testing approaches of each of the Nation’s federal circuits.  Nonetheless, whether one perceives great change or modest change in Twiqbal, there is little question but that it has added a good deal of uncertainty to the pleadings stage of federal litigation, and is likely incentivizing great factual enhancement by federal pleaders.

3. What is the biggest challenge for lawyers practicing in the products liability field today? What advice would you give?

Our discipline is one marked by great change today.  Perhaps the biggest challenge for any products lawyer today is simply keeping up with the profound and continuing fluctuations in the substantive law we confront and the procedures through which we confront them.  Without question, the consequences of these changes can be dramatic and dispositive.  Twiqbal and federal preemption can be courthouse door-closers.  The new Branham approach to product design theory imposes enhanced burdens on plaintiffs and offers fresh vulnerabilities to defendants.  The thought that the Constitution’s free speech protections could impact products cases raise an entirely new and generally unexplored frontier.  This is an exciting time to be a products lawyer.  My advice?  Simplistic as it may sound, perhaps the product lawyer’s greatest challenge today is just keeping abreast of change.

4. Generally, how would you characterize the media coverage of products liability issues?

It’s a mixed bag, in my view.  Industry-specific media sources (like BNA specialty reporters or Law360) seem to do a laudable job of capturing nuances and practical meaning in major case law and legislative developments.  While I might take issue with a particular comment or critique in those sorts of sources, I find that, by and large, their work is fairly sophisticated (considering time and space constraints), and valuable to the practitioner.  The mass media is, predictably, a horse of a different color.  Their target audience is not the products lawyer or industry participant, but the daily news reader.  Sophistication, nuance, and reliable interpretation all suffer.  In that environment, “sound-bites” seem often to trump content.

BONUS QUESTION: Favorite pop culture lawyer?

It’s a retold answer for sure, but Vinny Gambini (My Cousin Vinny) is the hands-down pick for me.  If you pressed me for a more obscure choice, I’d go with Rudy Baylor in The Rainmaker.  I think Grisham wove an entertaining David-versus-Goliath tale, with a good number of “teachable” moments that I use with great effect in class.

BIOGRAPHY: William M. Janssen joined the Charleston School of Law faculty in 2006 after a lengthy practice with the mid-Atlantic law firm of Saul Ewing LLP, where he was a litigation partner, a member of the firm’s seven-person governing executive committee, and chair of the interdisciplinary Life Sciences Practice Group.  He concentrated his practice in pharmaceutical, medical device, and mass torts defense and risk containment.  In practice, he was involved in several high-profile drug and device cases, including the national diet drug (“fen-phen”) litigations, DES litigations, and myelographic contrast dye litigations.  He has spoken and written extensively on pharmaceutical and medical device law.

Now that we have finally finished off that last bit of Thanksgiving turkey, we here at Abnormal Use find it safe to turn our attention to the holiday season. Aside from the incessant holiday music blaring in every retail shop, there is much to enjoy about the holidays – gifts being right near the top. For those that have been blessed with children, gift buying takes on greater significance. As parents ourselves, this report from the Public Interest Research Group (PIRG) outlining those toys from 2013 the group deems “dangerous” caught our eye.

There are a few things of note on the list, which includes such items as a play food set and a toy dolphin. First, if these toys are the most “dangerous” ones out there, toy safety has come a long way since we were children. It seems like just a few short years ago, kids were wishing for lawn darts and Slip ‘N Slides. The protagonist in “A Christmas Story,” released way, way back in 1983, receives his very own Red Rider BB gun. A firearm! Yet today, we deem a princess wand “dangerous.” The shift in attitude doesn’t necessarily mean that the latter is not, in fact, dangerous. Nor does our commenting on the change mean a princess wand isn’t hazardous. But we must say that perception and cultural shifts are interesting.

Second, most, if not all, of the items, are included because PIRG determined that they constitute choke hazards. Certainly, any small item can be a choke hazard if ingested. We question, however, whether placing the items on a “dangerous” toy list is necessary. It is no revelation that a bead kit containing small parts is capable of choking a person. So, really, what is the point of placing such an item on the list other than to give its manufacturer a scarlet letter? The size of these items is not a latent hazard, so we shouldn’t need this type of list in the first place.

If PIRG is only concerned with choke hazards, parents should not need the organization to tell them what toys are “dangerous.” Common sense should prevail. As you do your holiday shopping, police yourself. If you, like us, have young children who put everything in their mouths, don’t buy small toys with small parts. PIRG could have saved a lot of time and money by issuing the same statement.

It is not uncommon for inmates, particularly those facing lengthy sentences, to file lawsuits and other grievances challenging their convictions. Even though many of these prisoners proceed pro se, they are often surprisingly creative in articulating their theories for relief. Some of the causes of action are very well-crafted. Others are quite humorous. And, then, there is the new complaint filed by South Carolina’s very own, Shaheen Cabbagestalk (yes, it really is his name), challenging the authority of lawyers and judges to perform their jobs, which takes the cake. The suit, filed in the United States District Court for the District of South Carolina, is captioned Cabbagestalk v. S.C. BAR Head Person of Establishment, No. 5:13-cv-03037 (D.S.C. 2013). Before delving into the allegations of the complaint, we note that this is not Cabbagestalk’s first rodeo. Cabbagestalk is in the midst of an 18-year prison sentence after being convicted of armed robbery in 2009. Since his conviction, he has filed no less than 16 suits against various persons and entities. In our book, 16 complaints in four years elevates him to the rank of professional – and likely vexatious – litigant.

Cabbagestalk’s newest creation arises out of the Titles of Nobility Act of 1810 (“TONA”). The Act reads as follows:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

So what does TONA have to do with lawyers and judges? Well, according to Cabbagestalk:

Most judges, senators, Congressmen, even all federal judges and most presidents are attorneys whom carry these titles. B.A.R. = (British Accreditation Registry) headquartered in London recognized everywhere as the BAR. These dealings are of British nobility. Esquire was the principal title of nobility which the 13th Amendment sought to prohibit from exercising any office within United States. . . . (All Acts) of their government (since 1819) are technically (Null and VOID) under T.O.N.A. Both “Esquire” are targets of the 13th Amendment so the entire Bar of South Carolina is prohibited and all its dealings are (Null and VOID).

In other words, lawyers, judges, and most of the government itself lacks any authority pursuant to TONA and, thus, Cabbagestalk should be set free. Interesting theory, that is. We imagine most were not even aware of TONA prior to Cabbagestalk’s proposal. And for good reason. TONA is not exactly the law of the land.

TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810. However, the amendment was never ratified by three-fourths of the states and, thus, never became a part of the Constitution. Some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819 (hence Cabbagestalk’s 1819 reference). However, even with Virginia’s ratification, the amendment did not reach the necessary magical number for passage. (For a detailed explanation, read here).

In other words, Cabbagestalk’s claims fail on their face.

Even if TONA was, or is, the law, lawyers should still rest easily. As much as many of us wish we did, lawyers do not hold titles of nobility. Lawyers are licensed, and thereby receive their titles, by state bar associations – not the British aristocracy. Article I, Sections 9 and 10 of the Constitution actually prohibit state and federal governments from granting any titles of nobility. Until the Queen starts anointing us all with special titles by the sword upon swearing in, we should refrain from staking our claim to the prevailing social class.

Cabbagestalk deserves some credit for his effort. Discovering the “lost amendment” and deriving a roadmap to relief is not easily done from a prison cell. If nothing else, it led us here at Abnormal Use to do some research on TONA. Otherwise, we may have been concerned about our ability to continue on in our profession.