craft beer 2Following a five-week trial, a Providence jury found Twin River Casino, a Providence liquor store, and a teenage drunk driver liable in a dram shop case where the plaintiff, Alissa Moulton, sustained serious spinal injuries following an April 24, 2010 motor vehicle accident. Specifically, Moulton was paralyzed from the chest down when she and her friend, Cristina Sianpi, were ejected from the back seat of a 1997 Toyota Camry.  The car’s driver, 18 year-old defendant Alexander Arango, was Moulton’s boyfriend and the father of their child. According to reports, Arango lost control of the Camry, which struck a median barrier, crossed the two right lanes of the highway, rolled over, and collided—rear end first—with a tree on the highway’s grass shoulder.

Although historically known as “conservative” in terms of verdict awards, it took this particular jury less than two days of deliberation before awarding Moulton $23 million in damages, plus interest. Additionally, the jury assigned 70 percent responsibility to the underage driver, 20 percent to Twin River Casino, and 10 percent to Royal Liquors, a Providence liquor store that allegedly sold alcohol to Arango. Under Rhode Island law, each defendant is jointly and severally liable for the entire amount of damages regardless of the percentage of responsibility. (R.I.G.L. § 10-6-2.)  The defendants against whom a money judgment is entered are also, however, entitled to a set-off in the amount of either: (1) the total amount paid by each settled defendant; or (2) the percentage of fault assigned to each of those settled defendants by the trier of fact, whichever is greater.  (R.I.G.L. § 10-6-7.)

At trial, Moulton, who is now confined to a wheelchair, was represented by Providence personal injury firm of Mandell Schwartz & Boisclair.  Her lawyers argued before Judge William E. Carnes, Jr., that Twin River was negligent in serving alcohol to a visibly intoxicated Arango, and that Twin River violated the Rhode Island Liquor Liability Act (R.I.G.L § 3-14-1 et. seq.) by negligently serving the underage driver.

For his part, Arango, was sentenced to two years in prison after pleading guilty in June 2010 to two counts of driving to endanger resulting in serious bodily injury, and one count of driving under the influence.

A spokesperson for Twin River has suggested that the casino may seek to appeal the decision, as it is “inconsistent” with evidence put on by the defense.

About the Authors

Kenneth R. Costa is a partner with Manion Gaynor & Manning. He is a member of the multi-state Products Liability Litigation Team, with a primary focus in insurance defense, products liability, asbestos-related and toxic torts cases in Rhode Island, Massachusetts, and Connecticut.

Matthew Giardina is an associate in Manion Gaynor & Manning’s Providence office, and a member of the firm’s Products Liability and Complex Tort Litigation Group. He focuses his practice in the areas of products liability defense, mass torts, and other complex tort litigation.
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Happy Holidays from CMJ

It’s Christmas time here in Boston again, and with it come several holiday traditions and Yule tidings for all to share.  In lieu of sending a holiday card to all my friends, clients, and fellow colleagues, I came up with the following e-greeting I would like to share with you, the Defense Litigation Insider readers.

Dear Reader,

With the holidays upon us, I just wanted to take this opportunity to extend some season’s greetings and wishes upon you.  I hope the coming year brings good health, wealth, and happiness.

Sincerely,

Lawyer*

*By acknowledgement and receipt of said electronic greeting, you, the “Reader” hereby agree to the following terms and conditions:       

  • This electronic greeting and any files or attachments transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed (i.e., “Reader”).  If you have received this greeting in error (i.e., Ebenezer Scrooge) please notify the sender and destroy the original message immediately;
  • Please note that the above holiday e-greeting is purely intended to wish, not force, compel, subject or suggest the ultimate end-user any holiday cheer, happiness, glee, or excitement.  Any derivative enjoyment received by the Reader is purely unintended and by no way the fault of Lawyer;
  • The term “holiday” is meant to include, but not limited to the following religious and secular holidays: Christmas, Hanukah,Kwanza, and Festivus;
  • Any attempt to “wish” does not imply, nor attempt to bestow said feelings of joy, merriment, happiness, Yule tidings, glee, cheer, or holiday-derived excitement upon the Reader;
  • In no way does the “Reader” hold Mr. Lawyer in any way responsible, either implicitly or directly, for any failure of said greeting to properly create or elicit an emotional response in Reader, as there is no warranty of merchantability, implied promise of happiness, or other emotional response guaranteed by reading of said greeting;
  • By the term “upcoming year” Reader hereby acknowledges that in no way does Lawyer means to specifically include the fiscal calendar year and, by receipt of said greeting, “upcoming year” includes but again is not limited to any secular and/or religious calendars, summer or winter solstice observations, or any Aztec-based calendars (whereby said greeting would be held completely null and void as the world will end prior to December 21, 2012), whichever may come first;
  • This greeting was drafted and originally sent in the State of Massachusetts and, as such, should Reader disagree with the content provided in same, Reader hereby agrees to submit to mandatory arbitration at the sole expense of Reader.  Reader further agrees that should an impasse at arbitration to subject of said greeting be met, any future claims created by or derived out of this greeting will be subject to the laws of the state courts of Massachusetts;
  • In no way does the above “greeting” constitute or create an attorney-client relationship.  No such “relationship” is deemed to be formulated, created, extended or implied by the receipt of said correspondence of joyous tidings.  Any and all attempts


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Fantasy Litigation

Over the course of the last 5 years, I have slowly but surely become engulfed, addicted, and borderline obsessed with this time of year, all thanks to football.  However, unlike many Pats or Giants fans, it’s not because I am anxiously waiting to see “Doctor” Brady go to work on Sunday afternoon and pick apart some defense.  Nope.  The real reason lies in the opportunity to play (and hopefully win) fantasy football leagues.  Here, I am allowed to “draft” NFL quarterbacks, running backs, wide receivers, tight ends and team defenses and use their actual statistics they generate each week to score points in head-to-head match-ups.  Weeks of hard work (i.e., scouting reports, mock drafts, countless arguments with “this guy” or “that guy”) go into my league draft preparation, all for the chance to win a pot of money (usually less that $1000) but, most importantly, the opportunity to trash talk and decimate the competition consisting of co-workers, friends, family members, and even clients.  My life at times even reflects that of “The League” on FX.

Every year around this time I am thoroughly engaged in a multi-billion dollar industry, religiously reading Matthew Berry’s Love/Hate selections each week, (although I can’t say I am always in agreement) or on the RotoWire seeking out what is the best match-up for my fantasy team.  I have even been a part to some major disputes and conflicts – one of which almost tore two lifetime friends apart, all over a 3rd down running back, and a payout pot of $250.  And this got me thinking.  With the rise of fantasy sports worldwide, one would expect that at some point, somewhere, we are going to see a new breed of litigation sprout up – fantasy sports litigation.  Before you laugh and dismiss the theory, just know that only a few short years ago, MLB players sued fantasy providers based upon their “right of publicity” to their statistics which generated these online games – and lost (pdf download).

FoxBusiness reports that fantasy football generates profits in excess of $1 billion annually.  With figures that high, only one reasonable, natural conclusion can be forthcoming: that fantasy football litigation will eventually ensue.  Crazy thought?  Maybe not.  Already specialty businesses such as trophy companies to fantasy dispute resolution companies exist – see the www.sportsjudge.com if you think I am kidding.  This web site will offer to mitigate any fantasy dispute for a fee.  A lawyer (yes, a lawyer) will then settle your quibble.  Insurance companies too, are getting in on the billion dollar industry.  For example, Fantasy Sports Insurance (FSI) will provide disability coverage on star players (yes, disability coverage), which will protect fantasy owners should their star player go down early (think Tom Brady, 8 minutes into the 2009 season).

Although an individual league may seem miniscule in overall value, the competition, gamesmanship, and the underlying key to many a lawsuit – the justification of knowing you were right – all describe the key personality traits
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POM vs. FTC

As we reported last week, Federal Trade Commission (“FTC”) Chief Administrative Law Judge D. Michael Chappell sided with the FTC when he found that POM’s marketing campaign – the one that reminded us of the alleged “wonderful” capability of pomegranate juice to treat, prevent, or reduce the risk of certain medical conditions – was in fact “deceptive.”  In particular, Judge Chappell found that POM’s claims that its juice can ward off and treat heart disease, prostate cancer and even erectile dysfunction lacked the scientific “juice” to support these statements.

Unlike other companies that have been recently embroiled in this same type of fight with the FTC POM is not going away without a fight.  In fact, it has poked a big stick in the eye of the FTC with a new advertising campaign which omits any mention of its failure to substantiate its claims of disease prevention and treatment, and instead “illuminates the facts and opinions” in the judge’s decision which emphasize the health “benefits” of pomegranate juice.

http://youtu.be/Z1cLQBQTzkM

Using excerpts pulled directly from Judge Chappell’s 335 page decision, POM’s “new” marketing approach touts the facts that pomegranate juice “supports prostate health” and “provides a benefit to promoting erectile health and erectile function.

POM and the FTC have until June 18 to appeal Judge Chappell’s decision.  And based on its actions thus far, it is likely that POM will in fact appeal the ruling.  In the meantime, it is clear that POM will not go down without a fight, and will challenge the limits of the FTC’s power to regulate the content of its advertising campaigns.  This strategy is, however, not without risks.  Such actions may cause the FTC, at some later date, to seek corrective advertisements and penalties if it finds that POM mischaracterized the judge’s ruling in its advertising.  Stay tuned, as this fight has likely just begun.
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POM WonderfulClass action lawsuits against major consumer product companies are on the rise thanks, in large part, to the Better Business Bureau’s National Advertising Division (“NAD”). The NAD assists in the advertising industry’s self-regulatory efforts to ensure truth and accuracy in advertising by providing guidance to industry in an effort to ensure that consumers can rely on the claims made by companies in their advertising campaigns – ironically enough –in an effort to avert litigation.

NAD does so by investigating complaints submitted to it by either competitors or consumers concerning advertising claims made by various companies.  NAD then uses a hybrid form of alternative dispute resolution to decide whether the claims can be substantiated, and publishes its decision online, in print, and via press release.

Recently, plaintiffs’ class action lawyers from across the country have begun to look to the decisions of NAD in order to support false advertising class action claims.  In a never-ending effort to seek out and discover the “next big thing,” plaintiff attorneys have begun to focus their attention on NAD rulings, which have sparked a new wave of class action lawsuits aimed at companies’ advertising campaigns.

According to NAD Director Andrea Levine, these NAD-driven lawsuits are not so much about “fixing the advertising or protecting the public,” but instead are all about the “money,” as there is no shortage of both product sales and consumers to join in these claims.

The NAD decisions inadvertently lay out a “roadmap” for plaintiff attorneys because they not only detail the legal doctrines which support their findings, but they also indentify an advertiser’s potential defenses and vulnerabilities before discovery even commences.  A perfect example of this is the class action lawsuit which was filed against the William Wrigley Jr. Company, based on the claim that its Eclipse brand gum was scientifically proven to kill germs that cause bad breath.  In a decision published one month prior to the filing of this suit, the NAD chronicled in great detail its critique of Wrigley’s support for its position and concluded that Wrigley should discontinue or modify its advertising campaign.  The class action plaintiffs then used the information gleaned from the NAD decision as a basis to sue Wrigley’s.  In fact, they actually cited the decision in their complaint.  Wrigley’s wound up settling that case for $6 million.

In another recent case, a federal class action lawsuit charges that POM Wonderful falsely advertised that its pomegranate juice provided certain health benefits to its users.  The NAD found that some of the research on which POM relied did not support its health claims – evidence which is directly cited by the plaintiffs in their class action lawsuit.  A copy of the POM Wonderful Class Action Lawsuit can be read here.

It appears that NAD rulings are becoming a gateway for class action lawsuits which, if left unchecked, may spiral out of control.  Companies must coordinate their efforts to enact legislation that makes it more difficult for a class
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