Lawsuit Abuse Fortnightly #9-11

Published May 24, 2010

Alternative medicine advocate Gary Null alleges in a New York state lawsuit he almost died from consuming the powdered dietary supplement that bears his name: “Gary Null’s Ultimate Power Meal.”

He’s suing the manufacturer of the supplement for $10 million in damages, alleging he suffered bleeding cracks on the bottoms of his feet, extreme fatigue, and body pains. It turns out the contractor who mixed the powder erred, including 2 million international units of Vitamin D rather than the 2,000 IUs called for in the formula. Null alleges he was bedridden and nearly died.

Null sells weight-loss products and supplements he says protect against aging, stress, and contaminated air.

Source: Dareh Gregorian, “Putting the ‘die’ in diet,” New York Post, April 28, 2010

Air War

A New York woman is suing a maker of microwave popcorn. She ate at least two bags of microwave popcorn twice a day for 16 years and claims it caused her to get “popcorn lung” from inhaling vapors.

“I’ve been eating popcorn many years, but now I wish I hadn’t,” she said. “I was eating two or three bags of popcorn a day. I didn’t know it would destroy my lungs.”

She alleges the manufacturer, Conagra, added biacetyl to the popcorn to give it a buttery taste. The company no longer uses this substance. The FDA is reviewing whether consumers risk lung disease from prolonged exposure.

Source: Thomas Zambito, “Woman sues, says 16 years of inhaling microwave popcorn vapors gave her ‘popcorn lung,'” New York Daily News, May 7, 2010

Are You Experienced?

The Connecticut secretary of state, once the leading Democratic candidate for Connecticut attorney general, sued herself recently, attacking a state law requiring attorneys general to have 10 years’ experience in an active law practice. Attorney general candidate Susan Bysiewicz admitted she’s never even been in a courtroom, although she has been an attorney since 1986.

The Connecticut Supreme Court unanimously ruled Bysiewicz was not qualified for the office, the CT Mirror reported. “I guess I can take the Supreme Court justices off my Christmas card list,” she reportedly told the Democratic state convention.

Source: Stephanie Reitz, “Sue yourself? Conn. official does to get on ballot,” Associated Press, April 13, 2010; Mark Pazniokas, “Bysiewicz teases convention about ‘what’s next,'” CT Mirror, May 22, 2010

Toujours Armor

The bassist for the rock group KISS is being sued by an ESPN makeup artist for “grinding” against her in a hallway of the ESPN studio while he was there for an interview. She has threatened to sue the musician unless he pays her $185,000.

In response, bassist Gene Simmons has asked a Los Angeles court to declare he never engaged in the incident and, further, it was “implausible if not impossible” for any “grinding” to have happened. He alleges at the time of the alleged grinding he was in full costume, which included an armored codpiece covering his groin area.

Source: “Gene Simmons says KISS costume prevents ‘grinding,'” Reuters, May 14, 2010; Kevin Underhill, “Gene Simmons: “Grinding” Allegations “Implausible” Due to Armored Codpiece,” Lowering the Bar, May 17, 2010

Label Dispute

The label on the vial of an intravenous drug commonly used in surgeries clearly was labeled, “One patient use only.” But medical personnel at a Nevada endoscopy clinic ignored the warning and used the vial’s contents to inject multiple patients. Not only that, they reused syringes on multiple patients as well.

Those practices allegedly resulted in the contamination of the drug with the hepatitis C virus, with several hundred cases pending in Nevada brought by persons who contracted the virus at that clinic and several others.

It sounds like a classic case of medical malpractice. But in the first case to go to trial, the deep pockets (the manufacturer and distributor of the drug vials)–not the clinics or medical personnel–got socked with $5 million in actual damages and $500 million in punitive damages for failure to adequately warn of the dangers of multiple use. According to the Nevada News Bureau, this was the largest jury verdict in Nevada’s judicial history.

Teva Parental Medicines, the manufacturer, is to pay $356 million, and Baxter Healthcare Corp., the distributor, is to pay $144 million to the plaintiff who contracted the disease after a clinic visit.

The plaintiff argued the vial was too large, so that multiple reuse was foreseeable. But the defendants said the drug in the vial is used in many surgeries, and sometimes all of the contents are needed and sometimes only part of it.

Both Baxter and Teva plan to appeal. A Baxter spokesman said evidence on the clinic’s reuse of syringes and vials on multiple patients was withheld from the jury, and he expects the decision to be reversed.

Victor Schwartz, general counsel of the American Tort Reform Association, said the decision was unprecedented. When a clear and simple warning is provided by the manufacturer, and that warning is violated by the end user, the consequences are harmful to product manufacturers and consumers.

Sources: Jury awards $500M punitive damages in hep C case, Associated Press, May 14, 2010; Nevada News Bureau, “On the Record Transcript: Tort Reform Attorney Questions History Making Hepatitis C Verdict in One of Nation’s ‘Judicial Hell Holes,'” May 13, 2010; both via Point of Law

Funny Business

It’s not illegal to make derogatory comments in public about your Jewish mother-in-law, a New Jersey federal trial court ruled recently.

The defendant, a comedienne, posted video clips on the Internet referring to her Jewish mother-in-law by her first name. She “admits her ill feelings” about the mother-in-law, adding, “Have you ever met someone and in the first five seconds you say through your teeth, ‘I hate this bitch?'”

The court tossed out the case, saying the comment “merely conveys the defendant’s opinion of her mother-in-law,” which is protected speech under the First Amendment. Prior courts have held, “The use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are discouraged, but such comments are not actionable,” the federal court held.

Source: Edelman v. Croonquist, Civil Action No. 09-1938, April 30, 2010

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984.
Phone 312/377-4000, fax 312/377-5000
Back issues are available online at
Publisher: Joseph L. Bast
Author: Maureen Martin
Editors: S.T. Karnick, Diane Carol Bast

Information on lawsuit abuse can be found on these Web sites:

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