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Wrongful TerminationAlmost immediately after his firing, Frost retained an attorney and filed a lawsuit alleging wrongful termination in violation of public policy, intentional infliction of emotional distress, and the novel alienation of reputation cause of action (based on Frost’s belief that the paper’s characterizations of his actions had made him “seem uncool,” thereby depriving him of the benefits of his carefully constructed facade.). For its part, the defendant answered, asserting various affirmative defenses, but relying principally on the notion that Frost’s retweet was, in fact, an endorsement and inconsistent with the paper’s editorial philosophy. The parties submitted cross motions for summary judgment and a hearing was held early last week. (When asked about the great speed of this litigation, which went from the filing of a petition all the way to a summary judgment hearing in a matter of weeks, both parties replied that celerity was necessary to resolve the dispute before coverage of the twentieth anniversary of the death of Kurt Cobain could begin.).
Employment ContractYesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones ‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.
Employment LitigationJIM DEDMAN: Generally, from the perspective of an in-house counsel, how has the rise of social media changed employment litigation?
Sexual HarassmentThe Paper with Ron Howard before, where I played a reporter. But it was my first really large role, and I loved the subject matter because, at the time, it was a big hoo ha that sexual harassment had not been addressed in film. And then that it should be addressed with the man that is a victim caused an interesting stir. But, just that the topic was so – everyone on the set was so impassioned by this topic. It was also a time, when, you know, computers and how they were used in offices, and the mixture of a computer and send[ing] messages in code. It was very exciting. The whole concept of the sexual harassment; and, I think some people were like, “Oh I didn’t even realize man could be sexually harassed, even if he is the boss.” I think it addressed lots of elements that were surprising
Property DamageWhile texting, emailing, or talking on a cell phone can be dangerous, so too is eating, smoking, changing the channel on the satellite radio, or just “rubbernecking.” Some years ago, I defended a garbage truck driver who was distracted while drinking a 16-ounce bottle of Mountain Dew. The result? He ran right into the back of another truck! Nobody got hurt, but the owner of the other truck filed a lawsuit for their property damage. We lost.
ProstitutionNone of which came out of Nevada, which of course has legalized gambling and prostitution. How, if at all, this would affect the usefulness of “proximity to temptation” as an affirmative defense, who knows? But I thought it was an interesting bit of trivia.
Hit and RunThe prosecution wanted to take the really bad fact a step further. They wanted to call a statistician who would apply a mathematical proposition known as the Bayes’ theorem to the facts of the case. Basically, the Bayes’ theorem is a mathematical expression of common sense. It addresses the probability that a given event could occur given the concurrence of certain circumstantial facts. For example, let’s say that a hit-and-run fatality occurred in South Carolina and all that was known about the suspect vehicle is that it was a gray sports car. As a matter of mathematical theory, it is possible to determine the probability that the suspect car was – say – a Maserati (or any other type of car). Naturally, the more specific factual input that is provided, the less probable it is that an event consisting of all that input could occur.
Criminal DefenseNF: The DA had a difficult task ahead of him, trying to prosecute a mob boss under these circumstances. What does the film say about kind of a job of a prosecutor in criminal matters?
Wrongful DeathQuinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.
Sex CrimesIn 2007, Spin Master Ltd. recalled more than four million Aqua Dots toys in the United States after discovering the product’s Chinese manufacturer mistakenly substituted 1,4 butanediol for the adhesive 1,5 pentanediol. When ingested, 1,4 butanediol metabolizes into gamma-hydrobutyric acid (GHB), otherwise known as the date rape drug. Reportedly, two children in the U.S. and three children in Australia were hospitalized after ingesting the product. We are guessing this is not what Wal-Mart had in mind when it deemed the product one of its “ Top 12 Toys of Christmas.”
FraudThe DRI’s Products Liability Committee will host a business meeting and substantive CLE program, which is scheduled for Friday, October 28th, from 8:30 a.m. – 10:30 a.m. The CLE will address strategies for handling the defense of aggregate consumer fraud claims, particularly the requirement that each plaintiff establish individual causation, a traditional rule that some courts have not applied in such suits. Our own Stephanie Flynn, as the Annual Meeting Liason for the Toxic Torts & Environmental Law Committee (TTEL) will cover the business meeting and introduce the CLE presentations given by the TTEL. Alas, the TTEL is scheduled at the very same time as the Products Liability Committee’s presentations, so Stephanie won’t be able to make it to both. Other blockbuster presentations include such topics as the over-criminalization of business conduct by the government (something felt broadly across the business spectrum and in a wide array of industries), technological changes in jury trials in the 21st century; and, most intriguing, the implications of genetic mapping to determine individual susceptibilities of exposure to products or toxic substances. These events will be followed by multiple networking opportunities, including a networking reception at the Newseum, the world’s most interactive museum!
MisdemeanorsPay-per-view king and boxing champ Floyd “Money” Mayweather, Jr. is certainly a polarizing figure. He is 48-0 in his professional career and largely considered the best pound for pound boxer in the world. He is one of the highest-paid athletes in the world, and his last two fights shattered previous pay-per-view records. As such, he seemingly has more money than he knows what to do with. He doesn’t wear a pair of boxers or shoes more than once, he color coats his luxury cars to match his mansions, travels with a Duffle bag full of money, and keeps over $123 million in a single bank account (though surely that number has grown considerably after the Pacquiao fight). In 2013, Tim Keown wrote an amazing article for ESPN on Mayweather titled “ The Last Great American Prizefighter,” which provides a more exhaustive look at Mayweather’s life. However, Mayweather also has a significant and well-documented history of violence outside of the ring, including a 2010 incident of domestic battery against Josie Harris, his former girlfriend. In 2011, Mayweather pleaded guilty to misdemeanor battery in order to avoid a felony battery charge and found himself sentenced to 90 days in jail. He was released in August of 2012, and the matter thereupon ended. That is, until April 2015, when during an interview with Katie Couric, he claimed that he never kicked, stomped, or beat Josie Harris, but that he did restrain a woman that was on drugs.
Drug CrimesDoctor of the dangers involved with their product rather than warn the patient directly.” (emphasis added). The decision also cites the rule of thumb regarding experts in drug cases like this one – “in cases of pharmaceuticals, since the warning is directed to physicians, only they or someone with similar expertise concerning pharmaceuticals would be qualified to determine whether or not the warning was adequate” (internal quotations and citations omitted).
MurderAU: Your role in the movie, you played Pfc. Louden Downey, who was a young Marine wrongfully accused of murder, what sort of background research or what did you do to prepare for that particular role of playing a Marine?
KidnappingNimoy. That December, the first Christmas tree was placed at the construction site that would later become Rockefeller Center. The Lindbergh kidnapping was a year in the future, and the attack on Pearl Harbor – precipitating the country’s entry into World War II – was a full decade away.
Premarital AgreementLiar Liar. Fletcher’s son cast a spell on him, prohibiting him from lying just before Fletcher was to represent a client in her divorce hearing. He knew his client was having an affair, which would trigger a clause in her prenuptial agreement prohibiting her from receiving any of her husband’s multi-million-dollar estate. The spell prevented Fletcher from examining her or the paramour without disclosing the affair. (Ignore for a moment that he was perfectly willing to allow his client to lie on the stand — arguably, he never “faced” that issue). At one point he objected to certain testimony, the judge asked why, and Fletcher responded, “Because it’s devastating to my case!” But his best effort was at getting a continuance until after the spell was broken, which he could not truthfully tell the judge he needed. To get the continuance without lying, he went into the bathroom and beat himself up. When the judge asked who had done it, Fletcher replied, “A madman, your honor, a desperate fool at the end of his rope.” Nevertheless, the ploy failed. The best part was watching Fletcher struggle to find an honest, truthful path to victory in the case. Ultimately, he discovered that his client had lied about her age in order to get married early, a revelation that also voided her prenuptial agreement for incapacity and entitled her to half of her husband’s estate despite the infidelity.
Personal InjuryI’ve always wondered why it was that the plaintiff’s lawyer in that case made that decision to attend his client’s deposition by telephone. From my perspective, it makes no sense. First, and foremost, a personal injury plaintiff is typically an unsophisticated litigant; he or she has usually never brought a suit before. He or she is generally unfamiliar with the litigation process. Accordingly, I suspect that most of them would be somewhat nervous prior to something like a deposition. So, it would make sense that his or her attorney would be present in the room to defend the deposition and to assuage any concerns that the client might have about the process.
Medical MalpracticeFisher v. Pelstring, et al., No. 4:09-cv-00252, 2011 WL 4552464 (D.S.C. Sept. 30, 2011), the court considered the case of William Fisher, who was diagnosed with a neurological condition after taking the generic version of a prescription drug used to treat acid reflux that was manufactured by a company called PLIVA. Mr. Fisher and his wife brought medical malpractice causes of action against the doctor who prescribed the drug, as well as products liability causes of action against Pliva and two makers of the prescription brand of the drug, including strict liability, breach of express warranty, negligent misrepresentation, breach of undertaking special duty, fraud and misrepresentation, and constructive fraud.
Business and Corporate Law
Business DisputesWith a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Anderson, S.C., Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.
Unfair CompetitionFlorida man James Brickman, as putative class representative, has filed suit against Fitbit, Inc., alleging that activity tracker’s sleep-tracking function does not work as advertised. According to his complaint, Fitbit manufactures a number of devices, several of which contain the sleep-tracker function for an additional $30 charge. As allegedly stated on the product packaging, the function of the sleep-tracker is to track hours slept, times woken up, and the quality of sleep of the Fitbit wearer. However, Brickman alleges that scientific research has revealed that the Fitbit consistently overestimates the amount of sleep by 67 minutes per night. Brickman “expressly disclaim[s]” any recovery for physical injury arising from the alleged misrepresentations. Nonetheless, he claims that the misrepresentations implicate serious public health concerns caused by thinking you are sleeping 67 minutes longer than you actually are. Brickman has asserted claims under California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. In addition, he alleges a violation of the Magnuson-Moss Warranty Act as well as common law claims for breach of express and implied warranties, fraud, negligent misrepresentation, and unjust enrichment.
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