In Ohio, Class Action Allowed To Proceed In Target Wipes Case

Last year, Ohio’s Christopher Meta filed a class action lawsuit against Minnesota’s finest, Target. I apologize that we didn’t cover it when the news initially broke, but everyone else is too highbrow, and I was afraid that I would fall victim to an Andy Zaltzman-esque inappropriate pun run (for reference), which would stave off readers and irreparably damage our reputation here at Abnormal Use. Christopher Meta’s class action lawsuit alleges that the Target brand up&up baby wipes, which are labeled as flushable, dispersible, and sewer and septic safe, were none of the above. According to Mr. Meta’s plumber, the flushable wipes had caked together. Meta was charged $210 for the removal of the . . . products.

According to Meta’s Complaint, wipe users everywhere are suffering the same tragic fate. New York has a rather well-documented history of fighting the wipes, even going so far as having its politicians attempt to ban them (probably all Toilet Paper Lobby propaganda).

Earlier this month, an Ohio federal judge denied Target’s motion to dismiss the products liability claims in this matter. (A copy of the order is available to download). Target argued that while some of the class members experienced clogged plumbing, others did not. The district court did rule that Ohio’s Product Liability Act abrogated the plaintiff’s tortious breach of warranty, negligent design, and negligent failure to warn theories of recover. However, the court allowed the plaintiff’s four other causes of action to proceed.

We will do our best to keep abreast of this litigation. In the meantime, if you’re bold, take a gander at the plaintiff’s complaint or the photo from The New Yorker article linked above.

Exploring A Tweet About A 1912 Ohio Supreme Court Case

It’s funny how the Internet works. We here at Abnormal Use have previously extolled the virtues of the @TweetsOfOld Twitter account, which in its own words, “attempt[s] to reveal the lives of our predecessors through the tweets of yesteryear.” In so doing, that Twitter account utilizes “real one-line brevities from old newspapers, as they appeared – or close.” Usually, the folks behind that account offer compelling, intriguing, and occasionally curious moments from periodicals published at least a century ago. Sometimes, the tweets center around some type of legal issue, made all the more interesting by the age of the event being profiled. On December 29, 2012, the TweetsOfOld account issued the following tweet:

“The Ohio Supreme Court says a man can whale a boy for snowballing him. IL1912.”

The alpha-numeric abbreviation at the end of the tweet signifies that this report came from an Illinois newspaper in 1912.

This got us thinking.  If the Ohio Supreme Court made a ruling which made the news in Illinois, surely we could locate that opinion.

We assume that any such ruling would have been issued in 1912, although it’s possible it could have been released in late 1911.

So we turned to Westlaw and the trusty Ohio Cases (OH-CS) database. We set a date field restriction such that only cases between 1910 and 1913 would be searched. The search term “Whal!” revealed two cases, neither of which were the one at issue.  The search term “snow!” produced 11 cases, most of which were not Supreme Court cases and none of which were the opinion in question.

We then went to the Ohio Supreme Court’s official website, and its oldest featured opinions online are from 1992.

After a total of five minutes of looking, we gave up, as other duties called. Oh, the Internet, what crazy errands you prompt.

I entered a time entry for 6.6 on 1/17 in 6694-6.  Could you move that time entry to 3317-209?

First Hot Coffee, Now Hot Tequila?

Nearly everyone knows of the infamous McDonald’s hot coffee lawsuit.  For those of you who have followed the Abnormal Use law blog for a while, you know that we have covered the topic in great depth (a/k/a ad nauseam).  Well, now, there’s a new spin on this old classic.  Hot tequila!  That’s right: An Ohio man is suing a bar for allegedly serving him a shot of tequila that was mixed with extract from one of the spiciest peppers in the world.

Brady Bennett filed suit against Adobe Gila’s at The Greene in Beavercreek, Ohio,  alleging that a bartender negligently served him a shot of tequila with ghost pepper extract.  According to Bennett’s attorney, Bennett and his friend were out for a night on the town when the bartender offered them a round of shots.  Bennett claims the group ordered a manly round of tequila shots with apple flavoring, but Bennett alleges that the bartender gave them the old switch-a-roo with the ghost pepper extract.

Upon taking the shot, Bennett allegedly fell to the ground in pain as his throat swelled shut.  He was taken to the hospital and was ultimately just fine.

So what exactly is ghost pepper extract? Ghost pepper extract is one of the hottest peppers short of weapons grade pepper spray.  Pepper spray comes in between 2 to 5 million on the Scoville scale.  Ghost pepper, which is actually intended for use in foods and not incapacitating criminals, comes in right behind at just under 1 million on the scale.   By comparison, a jalapeno pepper is only around 10,000 Scoville units.

Serving a ghost pepper shot to a patron without a warning would certainly qualify as negligence.  However, the claim seems a little suspect.  It’s not like we are talking about Tabasco sauce.  What bartender would a) have ghost pepper extract handy at the bar and b) think to put it in shot?  Maybe the bartender was Loyd Christmas from Dumb and Dumber.  According to the restaurant’s owner, they don’t even stock ghost pepper extract at their facilities.  He did, however, admit that there may have been hot sauce in the shot.

Apparently, in addition to damages for medical expenses, Bennett also seeks damages for some real intense pain and suffering.  Bennett’s attorney told the Dayton Daily News, “Over the course of the next two weeks, when he has to go to the bathroom, it is an excruciating experience.” Ouch.


Ohio Woman Sues Over Towed Car, Demands $500 Billion

Ever wonder how much a 2002 Saturn is worth?  On the private market, Kelley Blue Book values the car at $2,800 when moderately equipped.  Well, in the eyes of Ohio woman, Michelle Mathis, that price is a little low – about $500 billion low.

According to a report from the Huffington Post, Mathis has sued the Columbus (OH) Department of Public Safety’s Impound Unit when her car was allegedly improperly impounded.  In January, Mathis was hospitalized for an extended period of time after a motor vehicle accident.  While in the hospital, her car was towed.  After being discharged from the hospital, she went to the Impound Unit to reclaim her vehicle.  When officials allegedly denied her request for information, Mathis came to believe that the Impound Unit disposed of her car because they didn’t like her.  In response, she filed suit against the Impound Unit in an Ohio federal court.  In the suit, she brought claims under the Fourth Amendment for improper search and seizure; under the  Fourteenth Amendment for violation of the Equal Protection Clause; and under the Ninth Amendment for violation of her inalienable rights.  Mathis has demanded $500 billion in compensatory damages and a mere $20 billion in punitives.  Recently, Federal Magistrate Elizabeth Preston Deavers recommended Mathis’ federal causes of action be dismissed.

So how did Mathis come up with such an outrageous number for the alleged loss of her car?  According to the magistrate’s report, Mathis alleges that musicians Jay-Z and P. Diddy were involved in the seizure of her vehicle.  In recommending that the case be dismissed, the magistrate obviously did not realize that 2002 Saturns are a hot commodity among famous rappers these days.  Even so, it seems like if she wanted to go after that much money, she would at least sue the parties with the deeper pockets, not just a governmental entity.

We here at Abnormal Use are hesitant to call any lawsuit “frivolous” without knowing all the facts.  However, this suit was likely doomed from the start with such a bold demand.  If plaintiff would have stuck with a conversion claim and made a reasonable demand this claim likely would remain on the docket and out of the press.  But no, that would have been too easy.

Tables Turned: The Legend of Hot Coffee Continues

Over the last year, we have written ad nauseum about hot coffee-related litigation.  Time and time again, consumers of the brewed beverage have sued fast food chains after suffering burns from what Plaintiff’s lawyers insist is an “unreasonably dangerous product.”  Apparently, one consumer has turned coffee into something other than a litigation golden ticket – a weapon.

According to, 50-year old Lamar Bond was dining at a McDonald’s restaurant in Cincinnatti, Ohio.  Following an argument, Bond threw a cup of hot coffee and a biscuit at a female McDonald’s employee, striking her in the face.  Thereafter, Bond fled.  Police records did not disclose whether the employee suffered any injuries.

We don’t know the source of the argument, but we will be keeping tabs on this case. In light of all of the hot coffee litigation over the past two decades, we wonder what positions will be taken by the parties in any criminal proceeding arising from this assault and/or any workers compensation hearings prompted by this on the job injury.

But something strange is going on in Ohio. Two weeks ago, according to CBS News, Cincinatti police responded to a separate incident at an IHOP in which a woman was hit in the head with a coffee pot.  At this time, we here at Abnormal Use do not know whether these should be considered incidents isolated to the Cincinnatti area or the beginning of a nationwide movement.  Maybe we should have seen this coming. If courts keep throwing out hot coffee suits, something needs to be done right? Alas, let the people rise up against coffee served hot!

Potential Class Action Suit Involving Keyless Locks Allegedly Easily Breached with Magnet

Eleven lawsuits against lock industry leader Kaba Corporation, a Swiss company with operations in North Carolina, have been consolidated into one potential class-action lawsuit in federal court in Cleveland, Ohio. reports that the allegations involve the company’s push-button door locks, which the plaintiffs allege can be easily breached with the use of a magnet that fits right in the palm of a would-be intruder’s hand.

The plaintiffs allege that the locks, which can be purchased for less than $200 or more than $1,000 each, depending on the particular model, are defective in design. They also include causes of action for deceptive trade practices, common-law fraud, and negligence. The plaintiffs are demanding that the company replace the locks, pay compensatory damages, and even turn over all of its profits made from the locks. This demand is made in spite of the fact that Kaba has reportedly already developed an upgrade to solve the problem, which it now utilizes and reports could be effectively applied to existing installations. In any event, the plaintiffs are represented by three heavy hitters in the legal community, including Louisiana based attorneys Richard J. Arsenault and Daniel E. Becnel Jr., and Los Angeles-based Mark Geragos (the “celebrity lawyer” who has represented Winona Ryder, Scott Peterson, and musician Chris Brown, among others).

The Kaba locks at issue are widely used within hospitals, airports, casinos, banks, retail stores, jails, and even within the Department of Defense. But interestingly, the lead plaintiffs are not government officials or business owners, but are Orthodox Jews who use the push-button locks on their homes so they can secure their homes without use of a key. During observance of the traditional Sabbath from sundown Friday to nighttime Saturday, adherents do not leave their homes with anything in their pockets. This has made the keyless locks a popular solution.

To date, the plaintiffs have not identified any criminal acts such as robberies that have occurred as a result of any breach of a lock. There still has been some harsh criticism against Kaba, though, by those who claim that the company has essentially taken the position that all locks are capable of being breached; they also point out that the company has not proactively offered to replace or fix the previously sold locks. Another writer at Forbes notes [link includes video of magnetic breach] that Kaba has taken the issue seriously and moved to fix it in its current models, but question why it has not published a warning in the media.

While it sounds like a good idea to alert consumers of the potential breach, though, this similarly would alert the public-at-large that the locks are capable of an “easy” breach. It certainly is a difficult situation to navigate for the company, which likely will be faced with significant costs no matter which path it chooses.

Defense Verdict: Jury Finds Vehicle Defective But Driver At Fault

In a case the judge reportedly called the biggest civil trial in the history of the county, an Ohio jury on March 21 rendered a verdict in favor of the defendant, Yamaha Motor Corp., in a $20 million case involving the death of a 10 year-old girl, in spite of its conclusion that the ATV at issue was defective in its design or warnings. The machine at issue was Yamaha’s Rhino. reports that this was the sixth case won at trial by Yamaha over claims that its ATV is prone to rollovers; however, it reports that Yamaha settled more than 100 others.

The facts of the case were quite sad. It was reported by the local news that the 10 year-old plaintiff riding in the Rhino at a 2007 church picnic. The 21 year old driver, according to the defense, was inexperienced with the machine. He attempted to perform a high-speed “fishtail” stunt maneuver in a dark, muddy cornfield with multiple unhelmeted child passengers. The driver was not sued in the civil action but pleaded no contest to criminal charges.

It is refreshing to see that jury members, in spite of the tragic underlying facts of the case involving death of a child, seriously and thoughtfully deliberated as to what they believed was the true cause of the injury. This case is reminiscent of another case in Texas, which we covered here, involving very similar facts with a very different outcome. There, an 18 year-old Texas man was boating and swimming with friends when the driver of the boat, another 18 year-old, put the boat in reverse, striking his leg with the propeller. It eventually resulted in the loss of his leg.

The Texas plaintiff sued the makers of the boat, alleging the propeller was defectively in its design. The Texas jury did not believe that the actions of the driver, who was not named as a defendant, was a superseding cause of the injury. It attributed only 17 percent of the negligence to the driver, and ultimately awarded the plaintiff $3.8 million in damages for the loss of his leg. These cases are further proof that with a jury, it’s always a gamble.

Our Take on the Olive and Kucinich

Before writing this post, I’ve made myself a sandwich, free of foreign material and animal products, with a short stack of lettuce, and which leans to the left. Of course I have named this creation the Dennis Kucinisandwich. I wish that Rep. Kucinich had been more courteous to me, as I did not have a chance to opine on his lawsuit before he went and settled it. Nevertheless, the economy still seems pretty bad in Cleveland, so I can’t fault him for taking the money.

I am talking about the olive pit case, of course, recently filed and settled by Rep. Kucinich from Ohio. Multiple news sites and blogs have lambasted Rep. Kucinich for his suit that claimed serious and personal dental injury. Rep. Kucinich even posted this release on his website, revealing some personal details about the effects of biting into an olive pit. Questions abound about Rep. Kucinich’s reasonable expectations of what comes in a sandwich wrap, especially being a long-time vegan, and, presumably knowing that olives naturally have pits. And before we engage in some deeper thoughts on the issue, we would invite you to comment with 2012 Presidential campaign slogans for Rep. Kucinich. Here are a few to get you started.

1) Olive (pronounced in a Southern Drawl “I – love”) Dennis
2) Vote Dennis. All others are pit-iable.
3) Kucinich – Building bridges (in my mouth)
4) I’m like you. I sue.

For some reason, people have a problem with the thought behind number 4, i.e, Rep. Kucinich exercising his right of access to the courts. Surely members of Congress have lots of resources and tremendous insurance, and Rep. Kucinich should have just taken care of this himself. Why? Putting aside our conservative, defense-oriented tint for a moment, why should he do that? Rep. Kucinich was injured by the fault of another and had a potential claim. Why shouldn’t he sue? The thought seems to be that a “rich” person should not litigate matters. (Not Mitt Romney rich, of course, but certainly Cleveland rich.) It’s not really clear that Rep. Kucinich was in a better place to bear the loss. After all, that is what insurance is for, to spread the cost of risk, and the cafeteria was surely insured.

I am at a loss as to why a litigious public would aggrieve Rep. Kucinich over doing what most other Americans would do. Rep. Kucinich represents a precinct in Ohio, where, I’m sure, people file lawsuits over personal injury. My take is that the perceived “outrage” over this “frivolous” lawsuit stems from the institutionalization of what a lawsuit is now. It is no longer a means to monetize losses or allocate damages to an injured party. Lawsuits are a means to gain power and money (with or without injury). Rep. Kucinich, being perceived as rich and powerful, is somewhat mocked for filing a lawsuit that, on the surface, seems to have some merit. He has no need to file a lawsuit, because he is already rich and powerful. Apparently, potential claims are no longer enough. There is in implicit requirement that personal injury lawsuits are now a means to riches rather than a means to restore loss.

Shame on you, Rep. Kucinich, for having a real injury.

Ohio: Duty to Warn that Football Helmet and Pads Could Cause Heat Stroke

In July 2009, the Southern District of Ohio decided, on the defendant-manufacturers’ motion for summary judgment, that a manufacturer of football equipment has a duty to warn that wearing full pads and a helmet could cause heat stroke. That case followed the well-publicized death of Korey Stringer of the Minnesota Vikings in 2001. Stringer v. National Football League, et al., No. 2:03-cv-665, 2009 WL 6885869 (S.D. Ohio Jul. 10, 2009).

Following Stringer’s death, his widow brought suit. After the summary judgment ruling, the defendant-manufacturers asked the Court to reconsider its decision denying the motion for summary judgment on plaintiff’s failure to warn claim. The defendants asserted that “this court committed clear error in holding that [defendant], as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to non-injured, non-users of the products, i.e. the Vikings’ trainers and coaches.” The court found no clear error in its July 2009 decision and denied the defendants’ motion for partial reconsideration.

The Court’s underlying July 2009 decision was brought to our attention as a result of this recent denial of the defendants’ motion for partial reconsideration. While this decision is more than a year old, it provides an interesting set of facts. In 2001, Minnesota Vikings player Korey Stringer died from complications of a heat stroke while practicing at training camp. Stringer was over 300 pounds, and he suffered heat stroke on a hot and humid day while wearing full pads and helmet. Stringer’s widow filed a lawsuit against the equipment manufacturers for failure to warn, design defect, breach of implied warranty and breach of express warranty.

The Court had granted the defendants’ summary judgment on all of the Plaintiffs’ claims except for her failure to warn claim. First, the court found that since the plaintiff could not show an alternative design for the equipment, it was not unreasonably dangerous and the plaintiff’s defective design claim failed. Second, the court found that “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” Third, the court found no evidence that the defendants expressly warranted that the helmet and pads were safe for their intended use.

On plaintiff’s failure to warn claim, the court denied summary judgment because it found that “[d]efendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer’s heat stroke and Defendants’ failure to warn was not remote enough to preclude liability as a matter of law.” Further, the court found issues of material fact about whether a warning would have changed the conduct of Viking trainers and prevented Stringer’s injuries.

The aspect of the court’s decision most intriguing to us is the court’s finding that the danger presented by the helmet and shoulder pads was not obvious. Stringer was a 300+ pound football player that was not new to the game and had likely practiced in full gear in the heat for many years prior. How could the danger not be obvious? In determining that the danger was not obvious, the court distinguished the general risk of becoming hotter when wearing a helmet and shoulder pads and the specific risk of developing heat stroke. The court stated that the first was obvious but the specific risk was not. We are still not convinced there is much a difference.

When to Make a Rash Decision

Because of his concern for “access to justice,” our illustrious governor vetoed House bill 3161, which would have increased certain court fees to help fund the judiciary. This commitment is admirable, because we must ensure that parents have the right to seek redress for their children’s diaper rash. As reported earlier by Law360, parents seeking justice for their children have filed a class action suit in the Southern District of Ohio because Procter & Gamble has manufactured diapers that allegedly cause “rashes, blisters, welts, bleeding, oozing, chemical burns, infections, sores, scarring and/or other ailments on babies’ and children’s extremely sensitive and delicate bottoms and other body parts . . . .” The Complaint is captioned as Clark v. The Procter & Gamble Co., 1:10-CV-00301, and may be accessed via PACER. The dangerous instrumentality is a newly designed Pampers Dry Max diaper.

Although the complained of diaper rash is probably more serious than other famous rashes, there are a couple of things (at least) that are concerning to me about this litigation. First, it centers on diaper rash. Is this really what the founding fathers had in mind when they signed the Declaration of Independence, preserving the right to sue over diaper rash? As noted by the National Library of Medicine, “[m]ost babies who wear diapers will have some type of diaper rash.” (To its credit, the NLM also notes that diaper rash is “rash in the diaper area,” lest one think that the diaper itself can experience rash.)

As noted by the NLM, diaper rash is caused by prolonged contact of the baby’s excretions with the skin. Lawyers will have to engage in discovery about diaper changing habits.

Q: How often did you change Junior’s diaper?
A: As often as he needed it.
Q: Did you ever leave a wet diaper on your child?
A: Never. I stand at the ready when my child urinates.

Moreover, the plaintiffs will develop some pediatric toxicologist who will say that it is more probable than not that Pampers causes diaper rash. I’m not sure what the failure to mitigate argument looks like, since carpet cleaning can be fairly expensive.

A more legitimate concern is P&G’s management of this issue in social media. Facebook has several pages devoted to this issue (see, e.g., here and here), and there is a lengthy discussion thread on Pampers’ Facebook page about the rash. In fact, the Complaint references a Facebook page requesting that P&G do away with the diapers. Through Facebook, a purported class has developed on its own, without any legwork by plaintiffs’ attorneys. Also, P&G will have to figure out how to be responsive via social media without damaging its litigation strategy. Perhaps P&G can offer some free samples as a show of confidence in its product. Whatever is decided, P&G has some problems ahead, because few things are worse than an angry parent.