News from the energy drink litigation carousel: Rockstar Beverage Corporation has now been sued in Los Angeles Superior Court after a man allegedly suffered a heart attack after consuming one of its beverages. According to a report from NBC, Plaintiff Oscar Maldonado claims to have consumed up to four Rockstar beverages in a 6-8 hour period and subsequently developed shortness of breath and chest pains. Over the next three weeks, his symptoms worsened. He was eventually told by doctors that he was having a heart attack. Thereafter, he was taken in for an undisclosed surgical operation. Now, Maldonado alleges Rockstar is to blame.

The specific allegations against Rockstar are nothing new in the increasingly popular energy drink litigation. The suit alleges that Rockstar drinks rely on large quantities of caffeine, a “substance well-known for imposing health effects upon consumers” and “known to play a role in triggering adverse cardiac episodes.” In addition, Rockstar contains taurine, an ingredient that allegedly has a similar effect on the heart muscles. Of course, Maldonado alleges that if Rockstar had properly warned him of the risks, he would have never consumed the Rockstar drinks.

We here at Abnormal Use have often been critical of these energy drink suits. This one is nothing new. At this point, we assume (perhaps wrongly) that everyone on the planet understands that most energy drinks provide that desired boost of energy through the use of massive amounts of caffeine and that caffeine is not-exactly known as being heart-friendly. In fact, Maldonado seemingly admits as much in his complaint  As such, we question whether any warning would have actually had any affect on Maldonado’s consumption.

Given the admittedly known risks of consuming large amounts of caffeine, we wonder how Maldonado works around the fact that he consumed not one, but four, Rockstar drinks in a 6-8 hour period.  We assume his defense will be that while he knew that consuming large amounts of caffeine was hazardous, he did not know that consuming large amounts of caffeine (x4) could be hazardous enough to result in a heart attack. Alas, Rockstar definitely should have warned him of that, right? Sigh.

According to reports, Apple finds itself the subject of a another lawsuit regarding its power adapters. Unlike the previously settled class action lawsuit which alleged that the MagSafe adapters were defectively designed and caused unnecessary fraying of the power cords, the latest suit alleges that the adapters actually cause physical harm to others. In the latest suit filed in California, Heather Henderson allegedly suffered second and third-degree burns after coming in contact with the adapter. Such burns, Henderson believes, could have been prevented had Apple placed an appropriate warning on the MagSafe adapter.

This suit arises out of an incident that happened earlier this year. Henderson’s husband was using his Apple laptop when Henderson fell asleep with her arm on top of the adapter for approximately 40 minutes. She woke up groggy, felt “itchy,” and went to bed.  The next morning she felt pain and discovered a “one-inch boil” on her arm.  Henderson believes the boil has resulted in a permanent scar.

From what we can gather from the reports, the interesting thing about this suit is that it is couched as a failure to warn case rather than one alleging that the adapter is excessively hot.  Henderson told San Diego’s ABC affiliate that she knew the adapter could get warm, but she “didn’t know exposure to [her] bare skin would mean a second- to third-degree burn.”  Moreover, Morris stated the following regarding the adapters:

It’s a huge problem.  It’s called MagSafe, but it’s not safe at all.  People are reporting burns and fires, and Apple knows this.

Henderson and Morris allege that burns such as those suffered by Henderson could have been prevented had Apple placed a warning label on the adapter.

We here at Abnormal Use are curious as to why Henderson appears to be focusing on the lack of warning labels on the adapter.  After all, she came into contact with the adapter accidentally while sleeping.  It is not like a more effective warning label would have saved the day.  Had Henderson alleged that the adapter heated to a temperature in excess of the normal in-use temperature of MagSafe adapters or other power adapters in the industry, then she likely would have a better case.  Our guess is that there must not be sufficient evidence to establish that the temperature of the adapter was abnormal or else Henderson would have proceeded on that theory.  When accidents happen and there is no legitimate means of recovery, failure to warn becomes the default.

See here for a prior post of ours on power adapter litigation.

Several weeks ago, a breach of contract/failure-to-warn lawsuit was filed in California state court against a specialty billiard table manufacturer. The case is Desert Beach, LLC v. Nottage Design Pty Ltd. et al, (Orange County). The complaint alleges that Desert Beach, which is a luxury resort, purchased a futuristic pool table from the defendants that – in my immodest opinion – is really, really sweet. Basically, instead of being covered in traditional green or blue felt, the defendants’ pool table is made entirely of glass. Make no mistake, regardless of the threat of war with Iran or the fact that some jerk-wad from Chicago literally just tried to hijack my bank account (props to Wells Fargo for shutting that down), this pool table represents a future I’m proud to live in.

Here’s the problem: The table is apparently easier to break than Michael Vick, who I’m told is also made of glass. Well of course, you may be thinking. A glass pool table is begging to be broken. That’s what I thought, too. However, the defendants allegedly coat each table in a synthetic known as “Vitrik,” which is supposed to make the table top highly durable. That’s one piece of the equation. The other piece is that only specialty billiard balls are to be used on the table. You could also get the best new pinball machines.

Which brings us to the lawsuit. The complaint alleges that defendants failed to tell Desert Beach about the fact that they had to use specialty billiard balls. So guess what Desert Beach did. They went to the Orange County equivalent of Wal-Mart (which may, in fact, be Wal-Mart, I don’t know) and bought the first set of billiard balls they laid their eyes on. And shot pool with them. And damaged the table so badly that not even Obi Wan could offer any hope.

Desert Beach called the defendants and asked them to make it right. And in a power-move befitting of a company who charges $73,000 for a pool table, the defendants allegedly told Desert Beach to pound sand. Then, again allegedly, the defendants tried to reverse engineer their website and other documents to show that Desert Beach knew they were only supposed to use specialty billiard balls with the table. Desert Beach was not amused by the underwhelming customer service and decided to double-down on the insanity with a lawsuit in California, the land of crazy lawsuits.

The defendants haven’t answered the lawsuit yet, so we don’t know their side of the story. But let’s be honest. The pool table cost $73,000. Did the defendants think that Desert Beach would just walk away from that? I mean, if you’ve got that much money to blow on a pool table, you’ve got that much money to blow on litigation to prove a point.

In July, 2010, an eight-year-old girl referred only as “N.K.” in court documents sustained injuries when her foot became caught in the side skirt of a moving escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station.  At the time, N.K. was wearing Crocs-brand sandals and riding a few steps ahead of her parents.  N.K.’s parents and other witnesses tried to stop the escalator by using its emergency stop switch, but that didn’t work.  A good samaritan finally managed to pull N.K.’s foot out of the escalator before it reached the top. N.K.’s mother, Nancy Geshke, brought a products liability action in Massachussetts federal court against Crocs, Inc.    We’re not sure if the elevator manufacturer or the MBTA were ever parties to the action, but in any event, the case proceeded against Crocs.  In its opinion granting Crocs’ motion for summary judgment, the district court discussed the various warnings posted on the escalator itself, portraying children getting caught in the escalator and warning of the same in writing, so perhaps Plaintiff chose not to pursue that avenue. See Geshke v. Crocs, Inc.,  No. 10-11567-RGS (D. Mass. Sept. 7, ,2012) [PDF].

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

I know you lawyers can, with ease, twist words and meanings as you please.

– John Gay

We here at Abnormal Use imagine the 18th Century wordsmith uttered these words in a derogatory tone, but we can still appreciate his sentiment.  After all, we do pride ourselves in our “interpretations” of laws, contracts, and transcripts.  But, we don’t like to call it “twisting.”  Rather, we are enaging in a “semantic exercise.”

Recently, in Schilf v. Eli Lilly & Co., No. 11-2082, 2012 WL 3139233 (8th. Cir. Aug. 3, 2012), the Eighth Circuit put on a fine display of its own expertise in the linguistical arts.

In that case, the Schilfs filed suit against Eli Lilly and Quintiles Transnational, alleging that Lilly’s failure to warn of a link between an anti-depressant and suicide caused the death of their teenage son.  The 16-year old boy visited his family doctor in November 2004 to discuss his depression.  The doctor gave the boy samples of the antidepressant, Cymbalta.  The medication had been removed from the packaging and, thus, lacked any warnings.  When dispensing the samples, the doctor informed the boy that there may be an increased “association” with anti-depressants and suicidal ideations, but “no completed suicides” occurred during the clinic trials.  The boy began taking the drug and committed suicide a few weeks later.  Thereafter, Lilly revised the literate for Cymbalta to include an FDA-approved black box warning.

The district court granted Lilly’s motion for summary judgment, holding (1) that a warning would not have informed the doctor of anything he did not already know and (2) that the doctor would have prescribed the drug even if he knew of the actual risks.  The Eight Circuit disagreed with both points.

Now, here comes the Olympic-esque semantic exercise.  As to the first point, the Eighth Circuit found that a warning could have pointed the doctor to more knowledge of the drug.  According the Court, the doctor was not aware of a “causal link” between Cymbalta and suicide, but, rather, an “association.”  In support, the Eighth Circuit pointed to the doctor’s deposition testimony, in which he stated that was aware of an FDA study finding such an association, but believed the FDA wasn’t “saying the risk was there.”  Under South Dakota law, warnings of side-effect associations are typically not warnings of causal connections.

Contrary to the doctor’s belief, the FDA press release did, in fact, find a causal connection.  The district court found that the doctor “read” this release and, thus, knew of the risks.  The Eighth Circuit pointed out, however, that the doctor only testified that he was “aware” of its existence. Clearly, a distinction.

On the second point, the district court based its finding on some testimony that the doctor still believed his prescription decision was appropriate.  Not so fast!  Being such fine stewards of the English language, the Eighth Circuit examined the testimony a little more closely.  When asked if there was anything he would differently, the doctor actually answered, “Not at the time.  I did – I did exactly what I would have done.”  “Not at the time” being the operative phase.  If he didn’t know of the suicide related information, he clearly wouldn’t have had reason to alter his decision.

If we were judges, we would have to give the Eighth Circuit high technical marks for its linguistic efforts.  However, instead of lecturing the district court on its interpretation of a deposition transcript, we would still would appreciate some more guidance on that whole failure to warn issue.

Often at issue in products liability litigation is whether a manufacturer adequately warned consumers of the potential dangers of its product. Product warnings can be pictorial, but typically, they take the form of written statements printed on the product’s packaging or within its instruction manuals.  Often, these printed warnings are written only in English.  But as our country becomes more culturally diverse, questions arise as to whether English-only warnings are adequate.  Recently, in Farias v. Mr. Heater, Inc., No. 11-10405, 2011 WL 2354369 (11th Cir. June 21, 2012), the Eleventh Circuit touched on that very issue – somewhat. (Back in January 2011, we covered the lower court’s opinion.)

In Farias, the plaintiff purchased two propane infra-red portable heaters manufactured by Mr. Heater, Inc.  One night, the plaintiff went to sleep with the two heaters running inside her home.  Because she neglected to close a valve on one of the propane tanks, her home caught fire, causing $300,000 in damages.  She filed suit against Mr. Heater and the retailer, asserting claims of strict products liability and negligent failure to warn.  The Spanish-speaking plaintiff alleged that the pictorial and English-language warnings were inadequate in alerting her of the dangers of using heaters indoors.  After Mr. Heater was awarded summary judgment on each of her claims, the plaintiff appealed.

The plaintiff acknowledged that Florida law did not impose an automatic duty to provide bilingual warnings.  However, she alleged that the warnings were inadequate because the pictures and English-text were inherently contradictory, inaccurate and ambiguous.  Further, she argued that English-only warnings were inadequate because Mr. Heater marketed the heaters to Miami’s Hispanic community.

The Eleventh Circuit was unpersuaded by either argument.

The  argued contradiction between the pictorial and English-language warnings is intriguing.  First, it is unclear how pictures and written text can be contradictory when the consumer lacks the ability to read the text.  If the written warnings were inadequate because they were not written in Spanish and, thus, could not be read by the plaintiff, it is illogical to assert that unreadable words contradicted with the pictorial warnings.

Second, the heater’s packaging contained six pictures depicting the appropriate usage of the product.  None of these pictures showed the heaters being used inside a home.  To accompany these pictures, the following warnings were printed on the box:

This heater is recommended for outdoor use only.

Always store propane cylinders outdoors in well-ventilated areas.

Not designed for use in living areas or small tightly enclosed spaces.

Propane heaters should be located outdoors during heater operations.

It is hard to envision any inconsistency between these written warnings and the pictures printed on the box.  However, the fact that the plaintiff was unable to read the English-language warnings leaves open the possibility that the pictures did not foreclose on the idea of using the heaters indoors.  Of course, the plaintiff had already conceded that Florida law does not require bilingual warnings.

As to the plaintiff’s second argument, the Eleventh Circuit found no evidence that Mr. Heater targeted the Hispanic community in its marketing.  As such, the Court did not find that the marketing efforts created a duty to provide bilingual warnings.  It would have been interesting to see how the Court’s analysis would have changed if Mr. Heater did so market the heater.  This may precluded summary judgment.

Unfortunately, due to some well-established Florida law on the subject, the Eleventh Circuit did not provide any thought-provoking jurisprudence on the necessity of bilingual warnings.  We here at Abnormal Use expect that the precedent will be challenged as we move forward.  While we doubt manufacturers will ever be required to print warnings in every language spoken in the United States, it isn’t far-stretched to assume they might be required to address the predominant ones.

Generally, manufacturers have a duty to warn users about non-obvious, known dangers.  But, what steps must a manufacturer take to discover potential hazards?  The legal standard is for manufacturers to warn of dangers that could have reasonably been discovered.  Obviously, this alleviates the duty to discover a soothsayer in a distant land prophesying about the inherent dangers of a product.  But, what about sources that are more apparent, like medical journals?  Recently, the Sixth Circuit tackled this very issue. In Rodriguez v. Stryker Corp., No. 11-5335 (6th Cir. May 21, 2012), the Sixth Circuit held that a pain pump manufacturer did not have a duty to warn of a danger based on 13 articles published at various times in the 70 years before the pump was used.  In 2008, the plaintiff discovered that he had developed chondrolysis, a condition which left him with no cartilage in his shoulder.  According to the plaintiff, he developed the condition after using a pain-pump manufactured by Stryker Corporation to infuse his shoulder with an anesthetic known as bupivicaine for two-days following a 2004 surgery.

How could the plaintiff make such a claim?  Digging up articles from 1933 medical journals, that’s how.

The plaintiff did not claim Styker had actual knowledge in 2004 that the pump could cause chondrolysis.  After all, the first reported case of chondrolysis linked to anesthetics didn’t pop up until 2005.  Rather, the plaintiff alleged that Stryker should have known of the dangers based on 13 articles that “document [ ] significant damage to articular cartilage after prolonged exposure to foreign solutions.”

As the Court noted, the plaintiff’s argument is a stretch given what the articles say.

For example, the plaintiff produced one article from 1933 that shows injecting rabbits with water and saline solutions over a period of weeks produces chronic arthritis.  Four other articles are used to link chondrolysis to dyes and antiseptics – not anesthetics.  Three articles discuss the use of bupivicaine within a joint, but none of which say bupivicaine is unsafe.  One article from 2004 did describe a patient who developed chondrolysis after using a pain pump with bupivicaine, but that article offered no conclusions linking chondrolysis to pain pumps.  When looking at the articles in total, the Court stated:

[N]ot one of Rodriguez’s thirteen articles shows that medical experts understood in 2004 that infusing a joint with bupivicaine for two days could cause irreversible cartilage damage.  Stryker had no duty to understand what the relevant medical literature did not.

We here at Abnormal Use must applaud the Sixth Circuit for its holding.  To be clear, the holding does not imply that manufacturers have no duty to discover relevant medical literature.  Rather, they do not have a duty to piece together articles over several decades to make medical conclusions that the literature has not made.  Medical literature has plenty of value and should be reviewed.  The most-respected researchers in any field are cautious about drawing conclusions. Why should we impose a duty on manufacturers to jump to conclusions the researchers haven’t made?  Manufacturers should not be expected to have a heightened level of understanding beyond that of the medical research. A manufacturer’s duty to warn is limited to risks that are known – by somebody.  As long as that somebody isn’t the mountaintop oracle of a foreign land.

We here at Abnormal Use love checking out product warning labels. Such labels, while serving a necessary purpose, can sometimes seem like a bit of overkill. Must we really warn that sleeping pills may cause drowsiness? Or, better yet, that a beach ball should not be used as a life saving device? The truth is that companies have a reason for these labels – to protect themselves from potential litigation even from the most over-zealous consumers.

We mention this as way of backdrop for an interesting situation that arose last week at The Heart Attack Grill in Las Vegas. According to Yahoo! News, a man recently suffered a heart attack while eating the Grill’s “triple bypass” burger. Fortunately, the man survived the attack, and by all accounts, should make a full recovery. While there is no indication of any potential lawsuits rising out of these events, we here at Abnormal Use had to question whether there could be.

While restaurants have been sued for causing obesity, we are not aware of any restaurants being sued for causing heart attacks. Obviously, the isolated consumption of a burger is not enough on its own to cause an attack. Eating similar foods, however, over a period of time can reek havoc on one’s arteries. Knowing as much, what should the Heart Attack Grill do to protect itself from future lawsuits?

To the restaurant’s credit, it has taken measures to provide adequate warning. If its name was not enough, a sign on its door warns that its food may be hazardous to your health. The Grill’s servers are known as “nurses” and its owner, “Doctor.” With menu items like the “triple bypass” burger and “flatliner” fries, customers should have fair warning the meal would not win the approval of “The Biggest Loser.”

It should be noted that while the restaurant jokingly warns its consumers, it also entices them with its slogan, “Taste worth dying for.” To make matters worse, anyone over 350 pounds eats at the restaurant for free. Unlike the lure of a forbidden fruit, however, a consumer must assume the risk before partaking in a butterfat milkshake. (Yes, it is on the menu).

While this may seem absurd, don’t be surprised to see a restaurant promoting unhealthy food show up on the litigation radar in the future. Fortunately for the Heart Attack Grill, no one can say they didn’t provide fair warning.

This past summer, the National Football League endured a 136-day lockout, the longest work stoppage in league history.  While current players spent the four month hiatus negotiating a new collective bargaining agreement, retired players had their own beef with the NFL.  Back in July, 75 former players sued the league and helmet manufacturer, Riddell, alleging that Riddell and the NFL concealed the harmful effects of concussions from coaches, players, and trainers.  Anderson v. National Football League et al., No. BC46842 (Cal. Sup. Ct.  July 19, 2011).  In addition, the players allege that football helmets were defectively designed and manufactured for attenuating the foreseeable force of impact.  Anderson was the first of three similar class actions filed in the Los Angeles County Superior Court.  On August 3, 47 additional players brought similar allegations against the NFL, Riddell, and a number of other sports entities.  Pear v. National Football League et al., No. LC094453 (Cal. Sup. Ct. Aug. 3, 2011).  On August 26, another 18 players entered the picture. Barnes v. National Football League et al., No. BC468483 (Cal. Sup. Ct. Aug. 26, 2011).  At this time, the three actions have not been consolidated.

Even with the protection of helmets and pads, concussions and injuries are still commonplace within the game.  While injuries still occur, they shouldn’t be attributed to any defect in the equipment.  Football is a dangerous game.  Players routinely collide into one another using incredible force.  If not for helmets and pads, injuries would be even more prevalent.  To our knowledge, there are no feasible alternative designs which could eliminate concussions.  The manufacturers are not responsible for the risks of the game.  They are responsible for doing what they can to minimize those risks.  Players should know of the potential harm their profession poses to their bodies.

Last year, we reported on the claim brought by a former player’s widow against the NFL and an equipment manufacturer.  In that case, the plaintiff alleged that helmets and shoulder pads were defectively designed and that the NFL failed to warn of the dangers of heat stroke.  By contrast, the recent string of claims allege that the NFL not only failed to warn, but intentionally concealed the dangerous effects of the game of football. We can’t speak as to what the NFL did or did not know about concussions. Whatever evidence may or may not be produced on that point, how can the players allege that they were completely oblivious to the dangers?

With scientific and medical research, we are constantly expanding our knowledge about the brain and the prevention of head injuries.  Accordingly, it is understandable that a player in the 1920’s may have had less knowledge about such things than a player in the 1990’s.  With the expansion of knowledge, the NFL and the equipment manufacturers have evolved their standards to protect players.  The abandonment of the old leather-helmets illustrate this point.  By the mid-1940s, football helmets were required by the NFL.  Obviously, the league recognized a need to protect the head.  We can only assume that players understood this same need every time they strapped on a helmet.

We recognize that protecting one’s self from the danger of an impact does not necessarily carry with it knowledge of long-term effects of concussions.  However, today’s scientific evidence was not available yesterday.  Indeed, one need not be a practicing physician to recognize that every time something is damaged, it doesn’t come back in quite the same position it was before.

We here at Abnormal Use love football.  We respect the players and recognize the risk they take on a daily basis for both the thrill of the game and our entertainment.  These latest lawsuits against the NFL, however, are misguided.  Football is dangerous.  Helmets are not just a placard for team logos.  They are worn for a reason.

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.