EP 11: A Suction Setting Too High

Episode Notes

Transcript

Alvin Wolff:

I don’t know. Are we influencers?

Christine Byers:

Welcome to The Case Doctors.

John Simon:

Yeah, I don’t think so.

Christine Byers:

Oh, I beg to differ. With John Simon and Alvin Wolfe.

John Simon:

I have a tough time influencing anybody anywhere. Homework.

Christine Byers:

The show where two of the greatest legal minds offer you advice on your cases.

John Simon:

Especially at home. Have no

Christine Byers:

Influence at home at all. I understand. The case doctors will see you now. Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolf. Now, we have some exciting news to kick off this episode. First, our podcast won an award at the Missouri Lawyers Media Legal Innovation Summit. We won for legal tech education.

John Simon:

Didn’t know this was an

Alvin Wolff:

Educational program. I was very surprised and very honored to get that award. Good. Same here.

Christine Byers:

It was a nice moment. It was a really nice moment. So thank you to the viewers for putting us on the map there. And also for our listeners who watch our show on YouTube, check out the new swag on John Simon and Alvin Wolf today.

John Simon:

We got to change the … You need to put your firm on the shirt. Apologize for that oversight.

Alvin Wolff:

Just get a Sharpie.

Christine Byers:

Looking good, gentlemen. Looking good. All right. Let’s turn to some of the civil cases, making headlines and hear what the case doctors have to say about them. Our first one’s going to take us over to California. And the plaintiff’s attorney in this case disclosed Uber MDL documents, and the judge says he is on thin ice. So here’s a little summary. Uber argued he should be sanctioned for allegedly using discovery in multi-district litigation over sexual assault liability to litigate other cases against Uber. In the enforcement order, the judge agreed with Uber and said that the plaintiff’s attorney improperly used the MDL’s discovery to create a spreadsheet, which then Uber claimed he later shared with his co-counsel in two unrelated cases against Uber over car accidents. So who’s right here?

John Simon:

I mean, to me, at first glance, it sounds like it’s not confidential information and it’s information that would be discoverable. If it’s discoverable in that case, it’s going to be discoverable in the individual cases. But the real question is, if there’s an order, whether it’s relevant or not, that’s another issue. If there’s an order from the court in that case saying don’t share it, you can’t share it.

Alvin Wolff:

I’m not sure why if you get information in one case and your counsel on another case, why you can’t use it. I mean, once the genie’s out of the bottle, how do you put it back in?

John Simon:

I agree. I agree. It’s sort of irrelevant because it’s discoverable. It’s already known. But like I said, this is going to depend on what the order said. I mean, sometimes orders are more restrictive than they should be. I mean, it sounds like from your reading of it, maybe there was not just the court order, but a confidentiality agreement. What I’ve seen in cases is when we’ve had to sign them, what we try to put in all of them is something like we’re allowed to use it in the event we are counsel, as you said, in another case, because it wouldn’t make any sense to … You’re representing a client, a new client, and you have information that’s helpful to that client. I mean, how do you not use it?

Alvin Wolff:

Yeah. I mean, why should you have to reinvent the wheel?

Christine Byers:

Have you guys ever encountered a situation like this where you’ve been involved in a lawsuit against a defendant and have other cases against that defendant and then find something useful in the discovery and then use it?

John Simon:

All the time. Happens to us all the time. And what we’ll do is talk to counsel and have the court modify the order in the case. If we have an order that prevents us from using it, we go back and allow us to use it in the other case. Or best thing is just to ask the same discovery in the second case that we did in the first case.

Alvin Wolff:

Yeah, you find that in hospital cases all the time. And they always want confidentiality orders. I said, “You really think I’m going to open up a hospital and use these rules and regulations to run my hospital?” I mean, what’s the secret

John Simon:

About it? I had an elevator case at a hospital and the hospital was one of the defendants and they argued confidentiality of information related to the repair and maintenance of the elevator. Silly. Yeah, it was. It was ridiculous.

Christine Byers:

All right. Well, let’s move on to our next hot topic. Now, as we all know, Grubhub is one of our popular food delivery services, and this lawsuit says Grubhub failed to protect private information from breach. The lead plaintiff said the company’s “negligence and insufficient data security allowed cyber criminals to easily infiltrate its network and access” everything they need to commit identity theft and wreak havoc on the financial and personal lives of thousands of individuals. Grubhub is bringing in more than two billion with a B annually, and the suit says it could have afforded to implement adequate data security prior to the breach, but deliberately chose not to. What do you think about the merits of this case?

John Simon:

I like the liability, not sure about the damages.

Alvin Wolff:

And I’ve seen in those cases, one of the remedies for that is that the offending defendant has to pay for monitoring for the plaintiffs for several years to make sure there’s not any unauthorized use of their credit information.

John Simon:

Yeah,

Alvin Wolff:

That would do it. You get Equifax for three years or whatever these companies are called. That’s probably the remedy. Everybody gets a 25% coupon for their next delivery of General South Chicken.

John Simon:

25 cents off their next hamburger,

Alvin Wolff:

Whatever. And the lawyers make $25 million, split 30 some dollars. Sounds

John Simon:

Like you like class actions or had a bad experience with

Alvin Wolff:

Classes. I’ve never understood them

John Simon:

Really for the most part. There are good ones and they’re ones that aren’t so good.

Alvin Wolff:

Well, these coupon ones I really kind of don’t understand. I mean, we just got a check for 13 cents on a case.

John Simon:

Yeah.

Christine Byers:

13 cents.

Alvin Wolff:

13 cents.

John Simon:

Did you have to fill out paperwork to get the 13 cents? I

Alvin Wolff:

Think it was automatic.

John Simon:

Oh, there you go. Didn’t cost you anything.

Alvin Wolff:

No, it didn’t. But it costs them 79 cents for a stamp to send the check.

Christine Byers:

How does that work? It

Alvin Wolff:

Makes no sense. How did that make any sense?

John Simon:

Was there a fee on that

Alvin Wolff:

On that case? I have no idea. I said, we have a check for 13 cents and I cashed it and that was it.

Christine Byers:

Well, how did you spend it?

Alvin Wolff:

It was my wife, so I just put it in her account. So which account would you like it in? Your checking account in the money market. Diversify. Split it up.

Christine Byers:

Thank you, gentlemen. Time now to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are going to focus just on the issue in each of them. So as they say, the case doctors will see you now. Our first viewer is contacting us about a viral lawsuit. My influencer client glued her face shut on TikTok. My 23-year-old influencer client purchased a knockoff facial suction tool from an overseas website. She used it live on TikTok without reading the directions and the warning on the packaging. Oh, what?

John Simon:

A face section tool?

Christine Byers:

A facial suction tool.

John Simon:

You ever heard of that?

Alvin Wolff:

I’ve got cardiac life support training the other day, and there is something you can put over your face to remove food. If the homeless doesn’t work- How does

John Simon:

That work? Oh, okay.

Alvin Wolff:

I mean, it’s a suction that goes over the face and you pull on it and it creates a suction so hard it can knock you down.

John Simon:

Is that what was happening? They were choking on food?

Christine Byers:

No, I think this has more to do with plumping your face and most notably I’ve seen them used to plump lips. You literally put … Yes. There you go, Alvin. The pouty lip look. So she used the highest setting which left severe hematomas all over her face. And she now claims the device is inherently dangerous despite not following the directions.

John Simon:

Well, why do they have it adjusted so it can go up high enough to cause injury? I guess.

Christine Byers:

That would be a good question. This attorney is asking, “Can I hold the seller liable when half of the disaster was streamed in live real

John Simon:

Time?” I don’t think that makes any difference, do you?

Christine Byers:

No.

Alvin Wolff:

Is it a permanent injury? I mean, I think of people when they do something called cupping and you look at their back after they cup and they got bruises all over their body and eventually they go away. I mean, if this lady sucked her face off, that’s another story. And then she’s going to have to sue the manufacturer in China.

John Simon:

Yeah, that’s another deal. Yeah, that’s another problem. Did she buy it from a brick and mortar store,

Christine Byers:

Amazon? No, she bought it online.

John Simon:

Online. There you go. Timo. Yeah.

Christine Byers:

There you go. It was a tem purchase. Now, what she’s arguing is that she’s an influencer, but now she’s being mocked online and suing the importer for those damages to her. Oh,

John Simon:

The damages for her reputation.

Christine Byers:

The defense is arguing contributory negligence and influencers stupidity.

John Simon:

Well, she was stupid to buy their product and use it, is what they’re saying.

Alvin Wolff:

Well, and it reminds me of trying something in the courtroom for the first time in front of a jury without testing it first with the doors closed. Not a good idea.

Christine Byers:

Have you guys ever seen that happen?

John Simon:

Yes. All the time. Yeah. Yeah.

All the time. So an attorney that my former partner was trying a smoke alarm case and he was representing the plaintiff and the allegation was the smoke alarm was defective, didn’t go off when our client was either burned to death or severely burned. And it had melted, sort of melted the smoke alarm. And the defense attorney handed the smoke alarm to their witness, or maybe it was my partners with … In any event, I wasn’t his partner at the time. He was a young lawyer, and he claims that the expert on the stand in court forced it open, pried it open, and there was no battery in it, and it hadn’t been …

Christine Byers:

Oh, dear. Oh no.

John Simon:

So that wasn’t a good day. It wasn’t a good day.

Alvin Wolff:

If the glove don’t fit, you must have quit.

John Simon:

Yeah. So it’s her reputation. You know what’s going to happen? I think more people are going to watch her program now. Good, bad, or otherwise, her viewership’s going to skyrocket. And here we are talking about her on our case doctor segment, right? She’s made the news, right? Or she will make the news, I guess. But yeah, I think, can you prove those damages? I guess. How? Not sure. But certainly, I think a product that’s made to be … She was using it the way they intended her to use it, right?

Christine Byers:

Right.

John Simon:

It was a foreseeable use of the product, even a foreseeable misuse is actionable. And I think if the thing really had a setting high enough to cause that kind of harm, people shouldn’t be using it. It’s probably a defective product. The tougher issue, as Alvin said, is where are you going to file the lawsuit if it’s purchased online and it’s a company from China or from some other country, you got that issue, you’re going to end up at best in federal court somewhere, and are your damages significant enough? And it sounds like the attorney’s angling for damage to her business reputation, which that may work. It depends on what the evidence is, I think.

Alvin Wolff:

Oh, if she has seven million influence followers before and nine million now, she’s going to have a tough time proving damages.

John Simon:

Yeah. And it’s I guess the embarrassment. Is that what it is? I mean, I don’t know. I

Alvin Wolff:

Don’t know. Are we influencers?

John Simon:

Yeah, I don’t think so. Oh, I beg to differ. I have a tough time influencing anybody anywhere, home, work, especially at home. Okay. I’ve got no influence at home at all. I understand. Yeah.

Christine Byers:

Another case comes to us from an attorney who says, “My client got pregnant after using a 3D printed IUD.” My client ordered what she thought was a state-of-the-art contraceptive device from a startup health tech company. Turns out it was a 3D printed IUD prototype sold through the subscription-based biohacker newsletter. She’s now pregnant and wants to sue for product liability and emotional distress. Here’s the kicker. The product came with a digital waiver, but it was buried in a 40-page NFT linked document she never opened. What theories of liability can I use here? Is this a failure to warn case, a design defect, or just a really weird informed consent issue?

Alvin Wolff:

You can start on that one. I tried a wrongful conception case where a doctor claimed to tie the lady’s tubes and didn’t.

Christine Byers:

Really?

Alvin Wolff:

And she got pregnant and she had an emotional breakdown and was hospitalized. I tried it in St. Louis County and I got a verdict for that. On the other hand, there’s a statute in Missouri that says you cannot file a lawsuit for wrongful birth or wrongful life. And I went to the Supreme Court on that on a case for a childborn with no arms.

Christine Byers:

Really?

Alvin Wolff:

And there was an ultrasound which showed … Well, I don’t know how you can show that something doesn’t exist, but there were no arms on the ultrasound. And I tried the case, got to the Supreme Court and told the judges that we were there for the mom’s emotional distress because one time I saw a twilight zone where a lady gave birth to a kid that was completely deformed and she freaked out. And I thought about that on the spot where I was told, “Well, what are her damages?” Said, “Emotional distress.” And we won. I got to try the case and got a verdict in St. Louis County on that, but the damages are significantly limited. So she’s either got wrongful … It’s kind of like a wrongful sterilization case. She could make a claim for that, but she can’t make a claim for wrongful birth or wrongful life.

John Simon:

So what about the consent issue?

Alvin Wolff:

Nothing is 100%. Yeah. Yeah. I mean, even when you were a teenager and you were buying condoms out of the gas station bending machine for 25 cents, there was a warning saying, “These don’t work.” You

John Simon:

Used the 25 cent ones?

Alvin Wolff:

That’s all I had.

John Simon:

Well, I had recorders. Should have used the 75 cent ones, buddy. They didn’t have the expensive ones of Carl Bolch’s. Oh,

Christine Byers:

Goodness. Wow. That’s good

John Simon:

Stuff, guys. I mean, I would agree with what Alvin said. It sounds like we got a case if you’re not in Missouri, right?

Alvin Wolff:

I mean, the states differed on wrongful birth, wrongful life. Missouri, there’s a statute. Wilson versus Koonsy was the case. And the other thing is the wrongful sterilization. I mean, there’s negligence for that. If she’s got emotional distress, but she can’t say, “I’m having a kid because of that, because that would be wrongful birth.” So it would have to be a mental distress kind of claim for any damages.

Christine Byers:

Fascinating.

John Simon:

Complex issues in that case. And even if you’re able to pursue the claim, I think there’s issues with the jury and how people look at that because you’re really going to court, suffering emotional distress from having a child. I mean, I’m sure she loves her child and cares for him. You know what I mean? I mean,

Alvin Wolff:

The damages in both of those cases, even though I got verdicts, they were not huge. But back then you could try a malpractice case in a file that was a half an inch thick. It doesn’t happen anymore.

Christine Byers:

That’s fascinating that the doctor, she went to get her tubes tied and it didn’t happen? What did he do?

Alvin Wolff:

Well, apparently he put some rings. He said he put some rings on the fallopian tubes and they fell off, but my expert said if he would’ve put the rings on the tube and they would’ve fallen off, there would’ve been an indentation or a scar or some sort of impression showing that he did it.

John Simon:

And so he really didn’t

Alvin Wolff:

Know. And he put it on the round

John Simon:

Ligament. So she had a procedure and he just didn’t do it, didn’t do

Alvin Wolff:

Anything? He put it on the wrong ligament rather than the fallopian tubes.

Christine Byers:

Oh, so he put the rings somewhere else, but the fallopian tubes.

Alvin Wolff:

This was the funniest case because-

Christine Byers:

Oh, dear. Look at that smile. When that smile comes out, I’m like- My

Alvin Wolff:

Expert is testifying and she says to him on the stand, “Do you know Doug Toud?” “Yes. How do you know him? “I threw up on his shoes once. He actually said this to the jury and everybody started laughing. Oh,

Christine Byers:

Wow.That’s interesting.

Alvin Wolff:

So where

Christine Byers:

Do you go from there?

Alvin Wolff:

It was cross-examination. It wasn’t my problem. Don’t ask a question you don’t know the answer to in court. You can do it in a deposition because that’s discovery.

Christine Byers:

But don’t do it in court.

Alvin Wolff:

Well, I mean, there’s exceptions to that rule, but that’s pretty good rule of thumb.

John Simon:

I agree wholeheartedly.

Alvin Wolff:

Unless the witness just is not answering the question. And if it’s not going to hurt you … I mean, one time the witness was testifying, I said to him,” What’s my client’s name? “And he got out his folder and started going through it.

John Simon:

That’s bad news. And I’ve had that happen more than once and try ask it. I ask it in trial all the time. We had my son, Johnny and I were trying a case. It was a death case in the county of a 27, 28 year old woman, and that’s what he asked with the corporate rep on the stand who was a real jerk that made a … He was terrible. And that’s what he asked. And he arrogantly said … And he didn’t say,” What’s my client’s name? “He said,” Who is? “And stated the client’s name. And do you know who that is? And he said,” I don’t know. “Kind of like that. Didn’t help him. Didn’t help him at all. The jury talked to us about that after the verdict.

Christine Byers:

Wow. Interesting. Okay, gentlemen, that will do it for this episode of The Case Doctors. If you have a case that you would like the case doctors to dissect, send us an email at [email protected]. Thanks for joining us, and we’ll see you next time on The Case Doctors.

Continue Reading