According to a report from the Tampa Bay Times, five St. Petersburg  city firefighters have filed suit in Pinellas-Pasco (FL) Circuit Court against Mine Safety Appliance Co. and Ten-8 Fire Equipment Inc., claiming that the helmets they were issued in 2010 were designed poorly and caused head and neck injuries.  Specifically, the firefighters allege that the 1044 Cairns model helmet, manufactured by Mine Safety and distributed by Ten-8, is uneven and causes musculoskeletal injuries.  Translation: These helmets allegedly turn the firefighters into life size bobble heads.

While the report is silent as to the nature of the injuries, we here at Abnormal Use can reasonably conceive how a weighty helmet could cause neck injuries.  After all, we are all prisoners of gravity and the hazards of top heaviness. Nonetheless, we question what alleged design defect in the 1044 Cairns model distinguishes it from any other helmet.  It seems as if any over-sized helmet would have the propensity to promote bobble head-like movement.  As such, even though the firefighters allege that this helmet is uneven, they might face some difficulty demonstrating that the injuries are the result of the 1044 Cairns and not repetitive trauma from prior models.  Further, it will also be interesting to see if this alleged problem is limited to the St. Petersburg department or whether it is more widespread.

The post New Suit Claims Helmets Turn Firefighters Into Bobbleheads appeared first on Abnormal Use.

At this point, everyone knows A&E’s hit television show “Duck Dynasty.”  The characters on the program have coined various catch phrases, including Uncle Si Robertson’s declaration that “My Favorite Color is Camo.”  The popularity of this quip led A&E to produce a line of camouflage clothing marketed to the show’s fans – a move which apparently generated “$400 million in revenues from sales of Duck Dynasty branded merchandise at Wal-Mart in 2013 alone,” according to a new lawsuit filed against the network.  The total revenues from the Duck Dynasty brand are unclear, but A&E reportedly also sells the clothing through merchandising deals with Sears, Kohl’s, Sports Authority, and Target. A Florida retail company, Hajn, alleges that it came up with the “My Favorite Color is Camo” trademark and began selling merchandise using the trademark in 2011, a year before “Duck Dynasty” first aired.  So, naturally, it has showed up to “quack some skulls in the duck call room,” legally speaking. Hajn sent a cease and desist letter to A&E asking that it stop selling the merchandise, but apparently the sales continued. So, on July 22, Hajn filed suit for willful trademark infringement and unfair competition in the U.S. District Court of the Southern District of Florida to prevent A&E from using its purported trademark. A&E has apparently declined to comment, and as of press time, it has not yet filed a response to the lawsuit.

We will say that we were impressed with the color images of advertisements – and even tweets – embedded into the complaint. Longtime readers may recall that back in 2010 we here at Abnormal Use remarked:

While it is customary to attach photographs as exhibits to memoranda in support of motions, rarely does the attorney actually embed the photograph into the pleading itself. (This is changing for the better, though.).

Whatever the case, we should all be patient to see where this one goes, or as Uncle Si says “America, everybody is in too big a rush. Lay back, take a sip of tea, mow a little grass. Then if you get tired, take a nap.”

The suit is Hajn, LLC v. A&E Television Networks, LLC, 2:14-cv-14291-KAM (S.D. Fla).

The post Federal Lawsuit Alleges Duck Dynasty Stole Plaintiff’s Favorite “Color” appeared first on Abnormal Use.

An incident of this type is obviously traumatic, especially when a pregnant woman is involved.   At this point, it is too early to tell who is to blame.  Tampa Police Chief Jane Castor has said that there was “no indication” of any involvement by Morales or Rosado.  So, if not them, then who?  A neighbor?  A friend?  Wal-Mart?  The packing house?  Could it just have been an LSD-addicted cow?  These questions are yet to be determined.

Certainly, this Florida Wal-Mart will be forced to attempt to clear its name.  Despite the police’s assertion the there was “no indication” that the victims were involved, Wal-Mart would be wise to do more investigation.  We are by no means experts in LSD, but we do find it suspicious that the effects of LSD can be so severe after the drug has been exposed to heat.  Moreover, we also find it interesting that those effects were violent illness for the adults rather than hallucinations.  Something sounds suspicious. There are obviously more questions than answers at this stage.  We don’t know who, what, where, when, or how this family ingested LSD.  But, certainly it couldn’t have been from a high quality Wal-Mart steak.

The post Steak Dinner In Florida Turns Into Acid Trip appeared first on Abnormal Use.

Here’s what the defendant’s asked for:

(o.) Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff’s]’s
i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

….

v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

Not surprisingly, the Plaintiff object to the discovery requests on the grounds that they were overbroad. The Court of Appeals bought this argument, noting:

[Plaintiff’s] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child’s] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff’s] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff’s] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

At the hearing before the magistrate, the party seeking discovery didn’t help itself by noting that “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Well, we as defense lawyers probably need to articulate the basis for our social media discovery requests a bit more artfully (although the magistrate judge, who apparently remarked at the hearing that “95 percent, or 99 percent of this may not be relevant,” did require production of the materials requested). The lesson: tailor social media discovery requests to require production of materials related as closely as can be to the claims and defenses in the case.

The post Florida Court Rebuffs Request For Social Media Discovery appeared first on Abnormal Use.

Zimmerman’s recent acquittal has brought another Florida law into the limelight.  As reported by NBC News, Zimmerman’s attorneys are preparing a motion that would ask the State of Florida – i.e. the Florida taxpayers – to pick up part of the tab for his defense, to the tune of almost $300,000.  The motion would be based on a Florida law that “says a defendant who’s acquitted isn’t liable for costs associated with his or her case,” according to NBC.

Like good little lawyers, we looked up the statute.  It states as follows:

It will be interesting to see if this law receives the same kind of attention and criticism as Stand Your Ground.  The Zimmerman case continues to make news and provide a microscope with which to view the rule of law and other issues of socio-economics and race in America.  Fascinating stuff.

The post Zimmerman Case Puts More Florida Laws Under Scrutiny appeared first on Abnormal Use.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.

The post McDonald’s Cases: More Than Just Hot Coffee appeared first on Abnormal Use.

At issue in these cases is 5-Hour Energy’s product statement, “Hours of energy now – No crash later.” As self-proclaimed coffee connoisseurs, we are a little too old fashioned to know the effectiveness of an energy drink’s claim. Apparently, enough consumers to organize into three putative classes think the product statement is a bit of a stretch.

In one of the suits, Guarino v. Innovation Ventures LLC, d/b/a Living Essentials, No. 13-cv-00101-GPM-PMF (S.D. Illinois 2013), the plaintiffs allege that the product statement “is not true, as admitted on the Defendant’s website and hidden behind the bottles in the display, which reads: ‘No crash means no sugar crash.’” So Innovation is falsely advertising a product by placing true statements on its website and directly on the bottle? Now we see why Innovation filed those motions to dismiss in the first place.

While its motion to dismiss may have been denied, Innovation may still ultimately prevail in this suit. Pleading sufficient allegations to survive a motion to dismiss does not necessarily make a good case. Unfortunately for Innovation, it now must embroil itself in hours of litigation defending the case. For their sake, let’s hope there is no awful crash afterwards.

The post Five Hours of Energy, No Crash? appeared first on Abnormal Use.

Now, Miami lawyer, Larry McGuinness, has made it one – and opened the door for an Abnormal Use critique.

McGuinness filed a class action lawsuit against the Spurs in a Miami-Dade County court over the incident, alleging that the team violated the State of Florida’s unfair trade practices laws. The suit alleges that Popovich “intentionally and surreptitiously” sent the players home without the knowledge of the league. As a result, fans allegedly suffered economic damages in paying a premium price for a ticket. McGuinness, who bought his own ticket to the game on the resale market, compared the situation to a disappointing meal at a steakhouse:

It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak . . . . That’s exactly what happened here.

We understand the disappointment. No one likes to show up to a game only to discover that a star player is M.I.A. However, our sympathy ends there. From a legal perspective, we question the validity of McGuinness’ suit.  Tickets to sporting events are usually revocable licenses which provide the holder the right to attend a game.  The team can revoke the license at any time, for (essentially) any reason.  It seems illogical to perceive a situation where McGuinness can successfully bring a suit for events that happened within a game when his own license to said game could be unilaterally revoked prior to the game without repercussions.  Moreover, McGuinness has filed suit against the Spurs – not the Heat, the team who issued him the license in the first place.

Even assuming McGuinness has grounds for a cause of action against the Spurs, just how has he and the rest of the class been damaged?  We understand that this was a “premium” game and that fans may have paid a higher ticket price.  However, McGuinness bought his own ticket through the resale market – any premium he paid was not that charged by the team or the NBA.  Sure, he may have been deprived of the opportunity to watch the Spurs’ stars, but he still had the chance to observe Lebron James, Dwayne Wade, and Chris Bosh fine tune their craft.  Even without the Spurs’ stars, the trio struggled to a 105-100 victory.  We wonder if McGuinness would have preferred a Heat loss to a fully-manned Spurs?

From a fan’s perspective, this suit could set an unwanted precedent.  Requiring teams to play – rather than strategically bench – otherwise healthy players will place teams in precarious situations.  Imagine the backlash if star player is injured in a meaningless game against a woeful team simply because he was required to play.  We are thinking most fans would prefer that their favorite players sit for a game if it helps bring home a title. If teams are required to play players, where does the NBA draw the line?  What if a player is medically cleared to play, but wants another day to rest a sprained ankle?  What about a death in the family just before game time?  While it is unlikely that an entire starting lineup would be simultaneously plagued by these conditions, they do arise.  Some fans – like McGuinness – will continue to have their gripes, so should they continue to bring lawsuits?

Again, we understand the frustration of attending a game only to discover a star player is not in attendance.  However, it is a part of the game and a part of the risk involved when purchasing a ticket.

The post NBA Team Rests Players, Gets Sued appeared first on Abnormal Use.

Within 24 hours of the procedure, Ms. Horillo suffered a serious stroke.

The warnings included by the manufacturer read as follows:

First, it stated that the device was “intended for use in palliation of malignant neoplasms in the biliary tree,” which is to say, treatment for cancer in the bile ducts. Second, under a heading entitled, “WARNINGS,” the instructions for use cautioned that “[t]he safety and effectiveness of this device for use in the vascular system have not been established.”

Deposition testimony in the case, however, revealed that stents such as this one were regularly used “off label” in the vascular system.  In fact, Dr. Rush had used this particular stent in the past in renal arteries.  The off-label use was so widespread, in fact, that the FDA called Cook and several other such manufacturers together about the issue before this surgery was performed.  As a result of that meeting, Cook sent a letter to the hospital where Dr. Rush did the surgery warning of the risk of stroke.

The post Florida Case Provides Insight on Learned Intermediary Doctrine appeared first on Abnormal Use.

Under the Wrongful Death Act, “[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” § 768.20, Fla. Stat. (2008). The relevant Florida Rule of Civil Procedure provides that “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Fla. R. Civ. P. 1.260(a)(1). Here, by denying the motion to substitute the personal representative for the deceased plaintiff, the circuit court essentially ruled that abate in the Wrongful Death Act equates with extinguish in the civil procedure rules.

Which, apparently, ignored the “remedial nature” of Florida’s Wrongful Death Act, as well as the “liberal spirit” of the civil procedure rules.  The court held that “stay” is a more appropriate synonym to “abate” as used in the Wrongful Death Act, thus allowing for a party to be substituted in the event of a death.  This interpretation, the court reasoned, is more in line with the rules of civil procedure, which specify that leave to amend “shall be given freely.” The interesting thing about this opinion is that, in the actual body of the opinion, the court actually acknowledges that it conflicts with a prior decision, and certified the conflict.  We will continue to watch this interesting line of cases.

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