Wouldn’t it be great to be incarcerated in the state prison system? I imagine that it would lend a great deal of structure to my day, and I could file my lawsuits for free. Perhaps some court would write about me in an opinion. Instead of identifying me by name, the court would simply start the opinion with “Plaintiff is incarcerated at Ironwood State Prison . . . .” Alas, Walter Brown, Jr. was so lucky, as shown in Brown v. Summerset, No. C 09-04764, 2010 WL 3154538 (N.D. Cal. Aug. 9, 2010).

Brown filed a products action based on the peanut products recall in 2009. Apparently, Summerset, the menu coordinator for the state prison system, also tried to punish Brown by providing him with “spoiled beef and textured vegetable protein tacos.” (This and other tidbits are available in the Complaint, which is Document 1 in the case easily found on PACER.) Although the complaint describes the injuries suffered, I’ll spare you most of the details, only to say that Plaintiff complained of an intestinal ailment that he described as “watery.”

Brown must have spent much of his time in prison studying law, as he stated claims for negligence, strict liability, warranty, and even intentional infliction of emotional distress. Brown did an excellent job pleading facts to get past Iqbal and Twombly. He alleged that the “Plaintiffs believed they would succumb to their sickness” and that the Peanut Corporation of America knowingly distributed tainted food. He also alleged damages of at least $35 million, ensuring that he would meet the amount in controversy requirement.

But woe to Brown, that in all of his legal study, the seminal case of Strawbridge v. Curtiss eluded him, and his suit was doomed from the start when he sued Ms. Summerset, a fellow California citizen, thereby destroying complete diversity among the parties. Judge Armstrong went the extra mile, even addressing whether federal question jurisdiction was available. Indeed it was not. Brown’s claim, being dismissed, may be re-filed in California state court, where it will be much harder for me to find and read his complaint on the internet. Good luck, Mr. Brown. May your next meal of beef and textured vegetable protein tacos be more appetizing.

What you see captured above is Main Street Friday in our own downtown Greenville, South Carolina. You will notice what some people call a “Bounce House” or “Bouncy Castle” featured in the photo. While all Greenville parents are happy to have a form of entertainment for their children as they enjoy the show, what they do not know is that they may be allowing their children to jump in a toxic structure.

Last week, The New York Times reported that California Attorney General Jerry Brown filed a lawsuit against entities that manufacture, distribute, or supply bounce houses used at events such as Main Street Friday or children’s birthday parties. He claims that the houses contain more than the allowable limit of lead and pose health risks to children. The Center for Environmental Health began an investigation into the vinyl used in the construction of bounce houses — the component that gives them the bounce. The results of their investigation revealed lead levels in the vinyl varying from 5,000 parts per million to 29,000 parts per million. The federal limit for lead levels is 90 to 300 parts per million, significantly lower than the vinyl tested in these houses.

Attorney General Brown reported that his intention for this lawsuit is to cause manufacturers to stop using lead-containing vinyl and/or ensure that all bounce houses have adequate warnings regarding possible lead exposure. While that actual health effects on children by jumping in a bounce house for several hours is unknown, Dr. Megan Schwarzman, a family physician at Berkeley Center for Green Chemistry, told the Times that “there was no safe level of lead exposure for children.” It will be interesting to see how this litigation progresses and whether similar lawsuits will arise around the country. While parents will be glad to be warned about the possible toxicity of bounce houses, I am sure that children will not be pleased!

Not only are these tasty treats two of my favorite indulgences, but they are the subjects of two pending products liability actions.

On May 13, 2010, New York resident Mirko Carrea (“Carrea“) filed a lawsuit in the U.S. District Court for the Northern District of California. Carrea, on behalf of himself and a nationwide class of consumers, alleged that Dreyer’s Grand Ice Cream labels are misleading and could deceive a reasonable consumer into believing that their products are healthier than they truly are. Carrea v. Dreyer’s Ice Cream, No. 3:10-1044, amended complaint filed (N.D. Cal. May 13, 2010). The Federal Drug Administration provided that a product with more than 13 grams of total fat or 4 grams of saturated fat cannot claim to be trans-fat-free. Carrea takes issue with the fact that nothing on the Dreyer’s Drumstick ice cream cone directs a consumer to the nutritional information, even though it contains 19 grams of fat and 10 grams of saturated fat. Carrea also takes issue with the fact that the label uses the work “original” and the ingredients when this product was first made differs from the ingredients used today. Carrea seeks restitution of funds gained through this alleged “false advertising” and an injunction to stop marketing in this manner.

Another interesting suit was filed on May 3, 2010 by Agnes Mercado (“Mercado”), a New York women, who asserted that she ate two to three bags of popcorn a day for about 16 years and, as a result, developed severe lung disease that may require a lung transplant. Mercado v. ConAgra Foods Inc., et al., No. 11069/10, complaint filed (N.Y. Supreme Ct., Queens County May 3, 2010). Mercado filed suit against ConAgra and Givaudan Flavors Corp., manufacturers of the butter flavoring diacetyl added to the popcorn. She alleges that the diacetyl causes “serious debilitating” respiratory illnesses. Mercado’s complaint alleges negligence, defective design, failure to warn and breach of warranty. She is seeking $100 million in compensatory damages and punitive damages.

Two thoughts – ice cream is not “healthy” in any form and 2 to 3 bags of popcorn a day for 16 years, she must be acquaintances with the Plaintiff we wrote about in our A Can of Tuna a Day post. Both of these action will be interesting to follow to see how at least two courts address claims by Plaintiffs seeking damages for what likely are open and obvious risks?

Her attorney, Allen K. Young, has tried to justify his client’s actions with the argument that the Plaintiff was walking in an area she had never been before, and at a time when it was “pitch black” outside. As if this somehow diminishes her own negligence. Young argues that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths. This failure-to-warn claim has been flatly disputed by Google, which has said every software version for mobile devices has had that disclaimer since Google Maps was launched in 2008.

Although Young has said that there is “enough fault to go around,” which presumably means he recognizes his client is at least partially responsible for her injuries, the absurdity of some liability arguments, and extent some will go to shift blame, continues to surprise.

Mafia Wars significantly marginalizes the social utility of Facebook. I confirmed most of my Facebook friends against my better judgment, only to later hide their status updates, because I don’t care about the fake fortune they have amassed, the ” jobs” they have completed, or the multiple assassination attempts they have survived. I have gone to New York, Las Vegas, Paris, and London. I don’t need to pretend to go there to establish a simulated criminal empire that serves to camouflage a deep sense of loneliness. Moreover, because all Facebook users are subject to Mafia Wars updates, the backlash against Mafia Wars has also risen to new levels, robbing me of the usual cachet I enjoy when I express disdain directed towards society. Mafia Wars, how big a judgment would it take to end this?

We here at Abnormal Use adore concise, get-to-the point jurisprudence, which is why we pause today to reflect upon the Ninth Circuit’s recent eight paragraph memorandum opinion in Shalaby v. Newell Rubbermaind, Inc., No. 09-56331 (9th Cir. May 17, 2010) (unpublished) [PDF]. To reduce the disposition of a products liability action to eight paragraphs is sublime.

In that case, the Plaintiffs, apparently from California, filed a products liability action after Mr. Shalabay was allegedly injured “when a handheld, gas-powered torch that he had purchased from a Home Depot store exploded.” Ever so briefly and succinctly, the Ninth Circuit observed that expert testimony is required in products liability matters to establish causation when the theory is “beyond common experience,” and because the Plaintiffs’ two proffered experts had been properly excluded by the trial court, the Plaintiff had no case. Thus, the Ninth Circuit affirmed the ruling of the district court, which had initially excluded both experts.

The money paragraphs were:

The court excluded the testimony of one of those witnesses, Dr. Anderson, a metallurgy expert, as unreliable and irrelevant. To support his theory that a design defect in the torch caused the explosion, Dr. Anderson conducted two tests on exemplar torches to demonstrate the flaw. The district court concluded that because Dr. Anderson had performed only two non-standardized tests, on torches that may have been different from the one here at issue, and did not adequately explain the results of or discuss the possible rate of error for such tests, his testimony would be unreliable. It would also be unreliable because he did not address certain contradictory evidence. Finally, he did not present adequate evidence that the design flaw caused Shalaby’s injuries, rendering his testimony irrelevant.

The district court excluded the testimony of the other witness, Dr. Vredenburgh, because she was not a qualified expert and, even if she were, her testimony was unreliable and irrelevant. Dr. Vredenburgh’s field of expertise was not torches; she had some experience in the formulation of warning instructions for various devices. When asked whether a different or larger warning would have helped in Shalaby’s case, Dr. Vredenbugh testified that “I don’t know why [the torch] failed, so I don’t know that a warning would have helped.” She stated that she had never operated a handheld torch and had not seen one operated in seventeen years. She had not spoken to any users of handheld torches in many years, and she had incorrectly testified about how such a torch is used. Dr. Vredenburgh admitted that she did not collect any empirical data, did not conduct any testing, did not conduct any surveys, did not seek data from manufacturers, did not review any peer-reviewed literature, did not conduct any other kind of research prior to forming her opinion, and did not follow her own typical process for developing product warnings.

Sure, maybe the conclusion was so easily reached that it only merited an eight paragraph opinion. But it’s nice to see such a case given short shrift.