My workload has been heavy lately, as has life in general, so I figured it was time for a diversion. It’s the end of the year, and thus unfortunately almost time for more deceptive “most frivolous lawsuits” lists, so here’s a retrospective of the worst lawsuit defenses I recall from 2012, a retrospective on the evils of water-soluble chalk, the violent propensities of classic Kung Fu movie fans, and the layman’s understanding of how a penile implant should work.


(5) Artist Drawing On Sidewalk With Chalk Deserved To Be Handcuffed, Arrested And Prosecuted For “Blocking Pedestrian Traffic”


One Saturday night down at 4th and South Street here in Philadelphia, artist Emily Hamilton Epstein was coloring the sidewalk with water-soluble chalk, the same harmless stuff my kids use that washes away with the rain. The complaint she eventually filed said:

[She] continued to draw for several hours, during which time she never blocked or obstructed public passage on the sidewalk. During that same period of time, many members of the public, including Philadelphia police officers, passed by and looked at her artwork — some commenting on the artistic quality of and the message communicated by her work — and no one ever advised the plaintiff that she was violating any law.

Isn’t it nice to see police officers walking around and encouraging civic participation like public art? For whatever reason, though, the chalk really, really bothered a particular Philadelphia Police Officer with a history of lawsuits against him. The officer allegedly demanded Epstein stop drawing, “grabbed and pushed” her, and then “applied handcuffs in an excessively tight manner,” after which he charged her with — drumroll, please — “obstructing the highway.”

The Philadelphia DA’s office took the case all the way to a non-jury trial, where the municipal judge brought sanity to the situation and found her not guilty. Epstein later sued — wouldn’t you? — and some poor fellow at the Philadelphia City Solicitor’s office had to come up with a defense. He settled on demanding “strict proof” that the chalk, which had long since washed away, was really water soluble:

[The] allegation regarding the type of chalk she was using is DENIED, because Answering Defendants do not have such knowledge.

The case settled three months later. 



(4) AT&T’s “Unlimited” Data Plan Is A “AT&T Can Do Whatever It Wants” Data Plan


Matt Spaccarelli’s “just a regular guy” in Ventura County, California. Matt signed up for a two-year “unlimited” data plan for his iPhone on “the nation’s fastest network,” AT&T. After he downloaded 1/2 to 2 GB of data, though, AT&T started “throttling” his data, slowing down the connection to a crawl until the billing cycle was over.

Thanks to years of dubious Supreme Court rulings on consumer arbitrations, AT&T’s service agreements prohibit class actions, but they do allow filings in Small Claims Court. So Matt took them to court, claiming justifiable reliance (in other words, “I only paid you guys because I relied on your ‘unlimited’ and ‘fastest’ claims.”)

AT&T ignored the lawsuit until the day before the hearing, when it filed a brief arguing “[AT&T] has the right to modify or cancel customers’ contracts if their data usage adversely affects the network. Matt argued that “adversely affects” didn’t mean much compared to their promises of “unlimited” and “fastest,” then used their filings against them to point out that he used his iPhone mostly in off-peak times, and that the particular cell tower near him didn’t experience much usage.

He won $850 from the Judge pro tem, prompting a wave of publicity, after which AT&T finally started talking to him — under the condition he keep everything entirely confidential. That failed miserably, prompted an outcry, and eventually AT&T ponied up the money.



(3) It Was Okay To TASER A Guy Five Times In The Back And Beat Him Up Because We Later Discovered His Jackie Chan Movie Collection


Dan Halsted, an employee at the Hollywood Theater, was walking home when someone shined a light in his eyes and yelled, “get him!” Dan, being a normal human being, started to run away, after which he was TASERed five times in the back and then repeatedly hit. In a panic, he started screaming for someone to help him and call the police.

Alas, the police were the perpetrators, the ones with the TASER. They also brought along a nauseating explanation — they suspected he was a graffiti artist, and it’s apparently normal and appropriate to TASER and beat suspected graffiti artists — and an allegedly fabricated story:

 “The arresting officer in his police report, he made up a whole other story and said that I had been running down the street with a couple other people.”

That’s the same thing the officer testified to in court when Halsted sued. In reality Halsted had been with friends at the Rose and Thistle Restaurant and was never charged with any crime.

“The whole event was terrifying, but I think the scariest part was their story afterwards – making me sound like a criminal. I think that was the scariest part,” he said.

Halstead sued, of course, and the City attorney came up with a surefire defense: “During the trial, the city’s attorney tried to use Halsted’s classic kung fu film collection against him, saying it proved he was violent.”

Ah ha! What could he say to that? “But Halsted is a film collector who works at the Hollywood Theater and said the whole thing completely changed his trust in police and how they use force.”

Oh. Jurors in Portland City — themselves taxpayers — thought poorly of the Jackie-Chan-Is-The-Devil defense, and ruled against the police officer. The City agreed to pay a $250,000 settlement.

As BoingBoing notes: “Naturally, Officer Benjamin J. Davidson remains on the force.”




(2) Only An Expert Can Say A Permanently-Inflated Penile Implant Is Broken


A man I’ll call EB had erectile dysfunction and so went to his urologist, who recommend he have an inflatable prosthesis implanted in his penis. (Here’s an example of one currently sold by the defendant, Coloplast, called the “Titan.”) After it was implanted, he successfully inflated it, but then couldn’t deflate it. Neither could his doctor. Neither could the representative from the implant manufacturer.

So EB had another surgery, but then the implant wouldn’t inflate. Once more he went under the knife to remove the thing entirely, at which point his doctor noticed a hole in it. The plaintiff filed a product liability suit, and had the doctor sign an affidavit noting that he had in fact seen the hole.

The manufacturer of the implant tried to get the case dismissed because the plaintiff didn’t have an expert witness to say the implant actually failed, arguing,

[T]he mechanical workings, design and alleged cause for failure (if indeed failure actually occurred) of a pump located inside of an inflatable penile prosthesis that was surgically implanted into a human being fall well outside the common knowledge of a layperson.

Count me old-fashioned, but I don’t think you need a weatherman to tell you which way the wind blows, and I don’t think it takes an expert to say that a penile implant should both inflate and deflate; I think we can safely say that “indeed failure actually occurred.”

The court rejected the defendant’s argument, so the defendant came back around again, arguing this time that, without an expert, “plaintiff cannot show that the device was not used improperly unless he can show that it was not implanted improperly” (emphasis in original).

Here’s a lawyering tip: if your argument requires a triple negative and a subjunctive clause — “plaintiff cannot show … not used … unless he can show … was not” — it’s probably not going to convince anybody. It didn’t convince the Court, and the case settled before trial.



(1) Pepsi Is Certain You Didn’t Find A Dead Mouse In Your Mountain Dew Can, Because Mountain Dew Dissolves Mice


Ronald Ball says he bought a Mountain Dew from a vending machine at work, took a swig, smelled something off, and then realized what it was: a dead mouse in the can.

Gross. But never fear, the good chemists at PepsiCo have an excellent defense, i.e., that Mountain Dew is so caustic it will turn the mouse into mush:

Most shudder-worthy, however, is that Pepsi’s lawyers also found experts to testify, based on the state of the remains sent to them, that “the mouse would have dissolved in the soda had it been in the can from the time of its bottling until the day the plaintiff drank it,” according to the Record. (It would have become a “jelly-like substance,” according to Pepsi, adds LegalNewsline.) This seems like a winning-the-battle-while-surrendering-the-war kind of strategy that hinges on the argument that Pepsi’s product is essentially a can of bright green/yellow battery acid.

Indeed, the chemists interviewed by Scientific American think Pepsi’s sort-of right about that:

“I think it is plausible that it could dissolve a mouse in a few months,” said Yan-Fang Ren of the University of Rochester School of Medicine and Dentistry, who has studied the effects of citric acid on bones and teeth. “But dissolving [the mouse] does not mean it will disappear, because you’ll still have the collagen and the soft tissue part. It will be like rubber.”

I haven’t had a Mountain Dew since.