Lowering the Bar

UPDATED AGAIN: Lawyer Has Client Tasered; Says He "Had No Choice"

A legal team in Southern California trying to create a defense exhibit has come under fire for what some might call "thinking outside the box," but others have suggested might be "illegal human experimentation."

George Engman is on trial in West Valley Superior Court for trespassing, public intoxication and resisting arrest after an incident at the Ontario Mills mall in 2006.  Engman claims that the police used excessive force when they detained him, and specifically that they shocked him 10 to 14 times with a Taser-style stun gun.  (It's not clear to me how this helps the defense -- it's still trespassing even if you get beaten up for doing it -- but the argument may be that he could not have resisted arrest because he was preoccupied with the 50,000 volts he'd been introduced to.)  The police say he was only shocked three times.  Thus the defense effort to conduct an experiment that would demonstrate the effects of repeated shocks on their client.

And what better way to demonstrate the effect of repeated shocks on your client than by inflicting repeated shocks on your client?  Engman's lawyer hired a consultant to do the tasering (possibly realizing it might not look good for counsel to zap the client himself).  The consultant shocked Engman "several times" with a stun gun and videotaped the proceedings.  To give credit where credit is due, the lawyer did not let his client face the tasering alone.  He also had himself tasered, as well as his brother (who is also his law partner).  The videotape, which reportedly "showed Engman writhing," was shown at a hearing last Wednesday, after which a few questions were raised.  ("Can I try that" was likely not among them.)

Specifically, the district attorney raised the question of whether the testing might have violated the "Protection of Human Subjects in Medical Experimentation Act."  See Cal. Health & Safety Code sec. 24170 et seq.  That law establishes an "experimental subject's bill of rights," basically constituting the subject's right to have the experiment fully explained, and requires informed consent.  It defines "medical experiment" to include "the use of a drug or device [or] electromagnetic radiation . . . in or upon a human subject in the practice or research of medicine" if that does not "directly benefit[] the subject."  It is unclear whether the client provided his consent in writing (though it seems clear he consented), and according to reports, the consultant admitted he was not certified to use a Taser.

But the defense argues that the test did (or was intended to) directly benefit the subject because it is part of a legal defense; maybe so, although a better argument might be that they were not "practicing medicine." And I would also argue that a prosecution for doing this might be barred by California's "litigation privilege" as well as by various constitutional provisions that protect the right of an accused to present a defense.  (I should make clear to my own clients that I'm not planning on experimenting on them any time soon, just thinking out loud.)  Engman's attorney said that the test was necessary to gather evidence because neither the DA nor the stun-gun manufacturer would provide studies explaining the kinds of wounds or marks that can be made by the device.  "We had no other choice," he said.  "We did it because our backs were up against the wall.  It was for the greater good."

The district attorney's office said last week that it was still to early to decide whether the shocker and/or any of the shockees would be prosecuted, but it seems unlikely.  A legal expert contacted by ABC News said the claim that the team was engaged in "research" sounded "laughable," although ABC did not report whether he himself actually laughed.

The TASER company's website provides a lot of research studies, and links to others, though I did not see any studies of the kind the defense was referring to.  But there is a lot of fairly comprehensive information on the site that could prove useful to everyone from scientists ("Effect of Varying Dart Separation along the Cardiac Axis on Ventricular Arrhythmia Induction during TASER Application") to the recently unthawed ("To many people, electricity sounds dangerous. Indeed, it can be").

Link: Orange County Register
Link: ABA Journal
Link: ABC News
Link: Research Studies Made Available on TASER.com

Jackass Testifies

The AP reported on Wednesday that the first witness called in a lawsuit between two Dallas neighbors "walked to the bench and stared at the jury."  This is not normally something you would encourage a witness to do, but in this case it was exactly what the party wanted.

The witness was Buddy, a donkey that belongs to attorney Gregory Shamoun.  Shamoun was involved in a dispute with his neighbor, John Cantrell, who complained about a storage shed Shamoun was building in his backyard.  Cantrell alleged that Shamoun then retaliated by bringing Buddy from his ranch and putting him in the backyard, to irritate Cantrell.  "They bray a lot any time day or night," Cantrell said.  "You never know when they're going to cut loose."

Shamoun decided on the risky tactic of actually bringing Buddy to court and letting the jurors hear, or not hear, from him directly.  (Not since O.J. tried on the bloody glove has such a daring courtroom tactic been employed.)  And Shamoun got away with it, apparently, since Buddy (who was more likely an "exhibit" than a "witness") was described as "the picture of a gentle, well-mannered creature and not the loud, aggressive animal he had been accused of being."

Buddy prepares for his dramatic testimony.
(Note patriotic American-flag bandanna.)

Nor did Exhibit A leave any Exhibit Bs behind on the courtroom floor, which probably also helped.

Shamoun's claim was that Buddy was at his home not to irritate Cantrell, but to serve as a surrogate mother for a calf that needed to be bottle-fed.  The article did not explain why the calf was there in the first place.

It is unclear whether Buddy's courtroom demeanor carried the day, because the case settled while the jury was still deliberating.  Shamoun agreed to buy some of Cantrell's land, and Cantrell dropped his complaint.

Link: Yahoo! News

UPDATE: Settlement Talks Break Down in Case of Previously Lustful Ostrich

I reported recently on a case in Germany in which an ostrich rancher had sued three teenagers for allegedly making one of his ostriches impotent by throwing firecrackers at it.  Happily (for me), the parties have so far failed to reach a settlement that was expected on Monday, and so another hearing has been set for June 4.

The rancher claims that Gustav was rendered impotent due to post-traumatic stress he suffered from the incident.  Gustav is apparently the only male breeding ostrich on the ranch, or at least I assume he is because his owner alleges that he would have been presented with 14 additional chicks but for Gustav's incapacity.  By the way, in case you've ever wondered what the expression on an impotent ostrich's face might look like, it would look something like this:

Fig. 1: The steely glare of a sexually frustrated male ostrich.

That's actually an AFP file photo, not Gustav specifically, but I'm sure he looks a lot like that, assuming he is still in the same condition.

The three teenagers deny throwing fireworks at Gustav, but do admit lobbing other things at him, so that's not much of a defense.  They have already agreed to work on the ranch as punishment, apparently to work off the 5,000 euros that the rancher is seeking, but the parties failed to reach agreement Monday on the issue of how many hours the boys must work.  They have offered 40, but the rancher is demanding 80 -- which would still work out to $27.71 per hour, not a bad rate for ostrich work.

The June 4 hearing will feature the testimony of a veterinary expert, presumably as to the possible effects of fright on ostrich libido.

Link: AFP via Yahoo! News

Court of Appeal Hears Case of The Taster's Choice Guy's Face

Yesterday I argued an appeal in California's Court of Appeal for the Second District, which covers Los Angeles, and I was just getting ready to leave after the argument when they called the next case, Christoff v. Nestle USA. That stopped me in my tracks because I recognized that case from one of my previous reports.  Here's what I wrote about it in February 2005:

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How to Turn a $250 Job Into $15.6 Million

Sue in L.A. County, that's how. In the latest (relatively) monstrous verdict from that jurisdiction, an L.A. jury awarded Russell Christoff $15.6 million dollars for the unauthorized use of his face on Taster's Choice jars for seven years. Christoff had been paid $250 for a photo shoot in 1986 but did not know Nestle had actually used his likeness until he saw himself on a jar in a drug store in 2002. "I looked at it and said, 'expletive, that's me!'" he recalled.

I hope he really does go around saying, "expletive!" but I bet he doesn't.

Lawyers for Nestle claimed that a Canadian employee of the company had unknowingly pulled the photo, thinking they had consent to use it, and that Nestle USA had brought it back to the States in 1997. The amount of damages was likely the only issue in the case. Christoff was paid $250 and was promised $2000 if the image were used in Canada, as it eventually was. The company offered him $100,000 to settle, to which he countered with $8.5 million. The jury's $15.6 million verdict apparently represents 5 percent of Nestle's entire profits from Taster's Choice while Christoff's face was on the jars, which certainly seems like a reasonable valuation to me.

Oddly, Nestle's lawyers said the company plans to appeal.

AP via SFGate.com

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Nestle did appeal, and I would like to thank the Court for scheduling the oral argument to coincide with my case. "Expletive, that's the case I wrote about!" I said to myself. I stayed to take careful notes (on my own time, of course). Mr. Christoff and his whole family were there in the courtroom, so it promised to be entertaining.

I was wrong that the amount of damages was the only issue in the case. It was an issue, certainly, but the main issue on appeal was whether the statute of limitations barred Christoff's claim even though there was no evidence he had any idea that his face was being used. (He had moved to Canada by the time he unknowingly became the Taster's Choice Guy for millions of Americans.) I think the argument was that the "single-publication rule" that applies in defamation cases would have barred Christoff's claim, but to be honest I was paying closer attention to trying to figure out which guy in the audience was Christoff, and more importantly which of the female heirs to the $15.6 million Taster's-Choice-Guy fortune might be single.

The Christoff extended family group was easy to pick out. Most of them were female, and of the men one was too old, one was too young, and the two in the back were way too ugly. That left just one guy, who did turn out to be Christoff as I later confirmed by digging up the picture below.

As you can see, Christoff now looks something like the guy who played J. Peterman on "Seinfeld," but back when he was looking for coffee-jar modeling jobs he looked something like a cross between Mandy Patinkin and Ricardo Montalban. The perfect man to become the new "Taster," as the company apparently refers to whoever is on their label. It seems that Nestle argued in part that Christoff was not entitled to damages (or only to a smaller amount) because it had really not used his own personal image, but rather had incorporated his face into what it called the "icon" of the Taster's Choice Taster.  ("Taster" doesn't seem accurate if only because the guy on the label is not in fact tasting, just gazing sensually at the coffee in the cup that he has been denied for so long, but is hoping, even longing, to taste sometime very, very soon. But I guess they have to call him something.) Justice Cooper wanted to know why Christoff should be entitled to all of the profits earned during the time his face was used, as opposed to whatever profits might have been attributable to the use of his own face. Presumably, that would be a much smaller amount, although Justice Cooper pointed out (several times) that she did of course think The Taster was a very attractive man.

Frankly, the debate over the single-publication rule in this context, while probably very important especially in Los Angeles, was less interesting to me than the various examples of celebrity-likeness cases or hypothetical cases that everybody kept mentioning.  I kept a list of celebrities mentioned:

• Bela Lugosi
• Arnold Schwarzenneger
• Lance Armstrong
• Ronald Reagan
• Walt Disney
• Aunt Jemima
• "a KISS band member" (unidentified)

The most comical thing I learned from the argument was that not only did Nestle use Christoff's face without express permission on millions of coffee jars in the U.S., they also apparently used it in other countries, and actually tinkered with his appearance to make it more palatable.  According to Justice Cooper, when they used his image in Mexico "they made it darker and gave him sideburns."

Link: AP via SFGate.com (coverage of the verdict in 2005)

DA Sticks With Witness Who Says He Sees Horned Aliens

See, this is what I mean -- I already have a stack of material, and then I see a headline like the above in the Daily Journal this very morning.  The hits just keep on coming.  It's hard to do better than that headline, and this in a week that has also featured the gems "Andy Griffith Decides to Run for Sheriff" and "Spanish King Denies Shooting Drunk Bear."

Anyway, this story involves the DA's office in Santa Barbara, California, already under attack for two recent incidents in which deputy DAs were removed from cases because it was revealed that they were involved in book and movie deals related to those cases.  The case reported today is a prosecution of Greka Energy Corp. for alleged health-and-safety violations at its refining operations.  Most of the suit has been settled, but six counts remain to which (happily) the testimony of Gary Lowrey appears to be relevant.

Lowrey is the company's former public safety officer, and is expected to testify that he warned about certain dangers but was ignored.  At Lowrey's deposition, Greka's attorneys did ask about that testimony, but according to the report, "focused much of their questioning on his claims that alienlike creatures emerge from his closet and put pinholes into his chest and those of his family members."

How'd you like to defend that deposition?  (By the way, if anybody out there might have a copy of the transcript, I'd greatly appreciate getting one.)

The company's research had uncovered the fact that Lowrey is a "regular" on websites dealing with alleged alien visitations, and so its attorneys were understandably eager to find out the details.  Apparently, Lowrey objected to some extent to the term "aliens," saying: "I'm not sure that they're -- you know, [that] you'd call them aliens.  I know they're not human-looking."  He continued, "I don't remember a lot of it because, you know, you're asleep when it's happening to you."  You know.  Chief District DA Tom Snedden accused the other side of leaking the facts as a distraction and in order to smear his office.  The "bigger issue," he said, was that the company "continues to snub [sic] its nose at the safety of the community."

It is not yet clear that the horned-alien testimony will be admissible.  Greka will have to show the judge that the alien topic is relevant, but experts said the DA might have little choice but to call the former safety officer to the stand and that his nocturnal experiences could then very likely be used to undermine his credibility.  If that happens, Deputy DA Jerry Lulejian says he's ready to defend his witness.  Lulejian says he has videotaped what he called a "phenomenon" at Lowrey's house, and that he intends to play that tape in court "to prove his witness is not insane."  It may prove something, but I'm not sure that's what it'll prove.

In yet another twist, I have seen reports that Lowrey is represented in the case by Bela Lugosi, son of the famous actor. I haven't been able to confirm yet whether that's true, but Lugosi's son is in fact an attorney who practices in Los Angeles in the field of intellectual property and entertainment law. Lugosi has extensive experience especially in the latter field, his primary clients including (not surprisingly) Lugosi Enterprises and (more surprisingly) the estate(s) of the Three Stooges.  Lugosi's victories for the Stooges have included the favorable verdict in DeRita v. Scott (I believe that's "Curly Joe" DeRita) and another successful Stooge defense in Comedy III Prods., Inc. v. Saderup, which reached the California Supreme Court in 2001.

I can tell you that finding out that a witness who has a closet full of horned space aliens that have allegedly been filmed by a deputy district attorney is represented by Bela Lugosi, Esq., who has also represented the Three Stooges, has certainly made my Friday complete.

"DA Sticks With Witness Who Says He Sees Horned Aliens, San Francisco Daily Journal, Friday, Oct. 20, 2006, pp. 1 and 9.

NJ Appeals Court Holds No Duty to Warn About Gravity

This week, the New Jersey Appellate Division ruled that a bunk-bed manufacturer has no duty to warn the user of a bunk bed that rolling off the top bunk during sleep may result in gravitationally induced injuries.

This ruling was necessary because a New Jersey trial court had previously ruled that a bunk-bed manufacturer did have a duty to warn the user of a bunk bed that rolling off the top bunk during sleep may result in gravitationally induced injuries.

In Mathews v. University Loft Company, the plaintiff, a college student, claimed that he had been asleep on his bunk bed "about noon" on October 11, 1999, when his pager went off.  His roommate yelled at him to turn the pager off, which plaintiff said "startled" him and the next thing he knew, he was "on the floor."  Working together, the floor and gravity dislocated plaintiff's shoulder, which then hurt a lot.  Plaintiff admitted that he later resumed sleeping in the bed, although he was careful to position himself "all the way against the wall" to minimize the chances of being subjected to the floor's titanic gravitational forces again.

According to plaintiff, he had never slept on a loft or bunk bed before, and it had never "cross[ed his] mind" or "occurred to" him that he could fall out of it.  He testified that had the manufacturer of the bed provided a warning with the product, he would then have been aware of the hazard and could have hugged the wall to begin with.  He asserted a number of other claims, but all were dismissed -- except for the failure-to-warn claim.

It does seem possible that Mathews actually injured himself in this alleged fall.  Applying Torricelli's equation, v²_f=v²_i + 2aΔd, with the assumption that the fall occurred at or near sea level so that Δ can be assumed to be 9.8m/s², and ignoring the effect of air resistance, I calculate that Mathews was traveling approximately 6.26 meters per second or almost 14 miles per hour when he struck the floor.  (Under the theory of relativity, of course, it would be just as valid to say that the floor struck him, which would make it the floor's fault.  Unfortunately for the manufacturer, our legal system has not caught up with Einstein yet.)  As someone who once walked into a lightpole at less than half that speed, I can tell you that an impact of that kind likely did hurt like hell.  So the claim of injury could be valid.

The warning claim, though, is bullshit.

Mathews hired an expert witness who claimed to be an expert in "safety engineering," including "safety in falls from heights, and human factors."  I've never understood what "human factors" means, frankly, but it seems that one of the factors is a human's need to be warned that falls from heights are unsafe.  According to plaintiff's expert, the bed was six feet high (apparently, he had measured it), and a fall from a height of six feet constitutes a "significant risk."  (See above.)  He claimed that the manufacturer should have provided an adequate warning of that risk, and he defined "adequate warning" as one that "tell[s] the people what the danger is and how to avoid it."  Thank you, Dr. Adequate.  Good to know.

Not surprisingly, defendant moved for summary judgment.  More surprisingly, the trial judge denied that motion.  She found an issue of fact existed as to whether the dangers of the loft bed, specifically the possibility of falling out of it, were open and obvious so that no warning would legally be required.  The jury resolved that issue in plaintiff's favor, and awarded him almost $180,000 based on the manufacturer's failure to warn of the gravitational danger.

But the Appellate Division found that the risk was obvious, as a matter of law.  It noted that putting a warning on everything would mean that no one would pay attention to the important ones, and that there was no duty to label every product that "poses a generally-known risk of injury if misused, dropped, or fallen from."  Further, it pointed out, a warning would not have done any good on the facts of this case anyway, since plaintiff was asleep at the time when he claimed he needed to be warned.

Plaintiff said through his attorney that he would appeal the ruling to the New Jersey Supreme Court, thus again flagrantly disregarding an obvious risk associated with going up higher than you can handle.

Link: New Jersey Star-Ledger
Link: Mathews v. University Loft Co., No. A-1536 (N.J. App. Div. Aug. 15, 2006).

BBC Interviews Wrong Man Re Apple Trademark Verdict

Showing just how easy it is to qualify as a talking-head legal expert on television, Guy Goma bravely fielded questions from a BBC reporter recently about the outcome of a trademark battle between the Beatles' "Apple Corp." and Apple Computer.  Mr. Goma responded to questions about whether the verdict was a surprise and what effect he thought it might have on downloading music.  And he did this despite the fact that he is not a legal or technology expert of any kind, but rather a cab driver who got into the studio by mistake.

The BBC producer was looking for a tech expert who was scheduled to appear, but Mr. Goma, who has the same first name as the expert, apparently raised his hand when the producer walked in and asked for "Guy Kewney."  He was promptly fitted with a microphone and seated in front of a TV camera.  (It is still a bit unclear where Mr. Kewney was, and why Mr. Goma was in the waiting room at all.  But let's just be thankful for these kinds of gifts when they happen.)

As you'll see if you watch the video, and you should, Mr. Goma realized almost immediately that someone had made a mistake (his expression, which the transcript describes as "Face of horror," is priceless).  But despite obviously having no clue what the reporter was talking about, and despite his limited knowledge of English, he did his very best to answer her questions.

For example, when asked "Were you surprised by this verdict today?" he answered (quite truthfully) "I am very surprised to see . . . this verdict to come on me because I was not expecting that.  When I came they told me something else . . . So a big surprise, anyway."  But having recovered from that surprise, then he was off and rolling, and he answered further questions about the music industry and the effect of downloading to the best of his ability.

And he frankly did about as good a job as most of the experts you hear interviewed for sound bites on TV news today.

The BBC reporter seems to have realized that there was a problem, but stuck with it until eventually turning to a reporter who was at the courthouse.  Later, the BBC acknowledged that they had interviewed the wrong person and apologized for any confusion.

Link: The Mail on Sunday (contains transcript and video link)
Link: Video of the interview