Tuesday, November 17, 2009
The Thanksgiving holiday has been the basis for some unusual lawsuits. These Days Legal Analyst Dan Eaton examines Thanksgiving in court.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. You might think that the holiday which celebrates our gratitude for prosperity, nature and our fellow Americans could keep itself out of the courthouse. But it seems nothing is sacred when it comes to litigation in America, and Thanksgiving has been the theme of several recent lawsuits and court decisions. So as we prepare for the annual feast, let's find out what Thanksgiving has been up to in court. Here to serve up the details is These Days legal analyst, Dan Eaton. Welcome, Dan.
DAN EATON (Attorney/Legal Analyst): Thanks, Maureen. You know, we sometimes do these segments that are holiday specific and this seemed like an appropriate one given that Thanksgiving is next week.
CAVANAUGH: You are absolutely right. Well, we have a image of the Thanksgiving turkey being carried to the table. It’s a famous Norman Rockwell image, but as every cook knows, sometimes bad things happen while cooking a turkey and sometimes very bad things happen. Tell us about a case out of New York where the turkey pan did not perform as expected.
EATON: This was in November of 1993 and it seems that a home shopping network promoted a one-day special pan in 1993 in November for cooking up to a 25 pound turkey. Ms. Loyda Castro saw that promotion and ordered the pan. Unfortunately, when she got it home to cook the Thanksgiving turkey—it was actually a 20 pound Thanksgiving turkey that she had—it didn’t quite perform as expected and, as you put it, bad things happened to her.
CAVANAUGH: Very bad things happened.
CAVANAUGH: Tell us. She received some very severe injuries.
EATON: She did. What happened was that the pan was not originally designed with two handles but the manufacturer in France was asked by this company to add two small handles for the purposes of this Thanksgiving promotion. Well, Ms. Castro took the pan out using – with two fingers and, of course, she had gloves on, and the pan tipped. The drippings and the fat fell on her foot and ankle, resulting in second and third degree burns and some resulting additional harm to her.
CAVANAUGH: So she took them to court because the turkey pan didn’t – wasn’t able to hold a turkey as far as she was concerned.
CAVANAUGH: What happened?
EATON: What happened was that the court threw it out. A court threw it out ultimately because the jury – the court didn’t dismiss it or anything, the jury heard the case and the jury ultimately decided that the benefits of the pan outweighed the risk. The pan, in other words, was perfectly useful for things like casseroles and cookies and so forth and the risk for injury – from injury from cooking a 20 pound or 25 pound turkey did not outweigh the benefits. So the jury, as it was instructed by the court, said, uh, we don’t find that the pan manufacturer and the home shopping network—it was actually QVC—were libel to Ms. Castro. But she wasn’t satisfied with that. She thought the jury should’ve been told more about the law and the possible way she could recover so she appealed.
CAVANAUGH: And what was the basis of her appeal?
EATON: What she said was that, look, it’s not just the risk in benefits that a jury can find in my favor, it’s also whether the pan performed according to my expectations, according to the so called consumer expectations test. That test, by the way, is also used in California, as is the risk benefit test. On either one of those basis, product can be – you can recover for a defective product. And, unfortunately, the jury was only instructed as to risk benefits, not as to consumer expectation. So she said, look, the jury wasn’t instructed properly. If they had been instructed, at least I might have won and, therefore, I’m entitled to a new trial.
CAVANAUGH: And the whole idea was that the jury wasn’t informed basically that the shopping network was marketing this as a turkey pan.
EATON: Well, they were informed of that. What they weren’t informed was that they could find in favor of Ms. Castro if that pan didn’t meet her expectations.
CAVANAUGH: Oh, I see.
EATON: They were only told that the only way she could win is if the risks outweighed the benefits…
CAVANAUGH: I see.
EATON: …from the pan, and there are other things and so forth, whether there – the cost of an alternative design. There are all kinds of factors that the jury had to consider in making this conclusion. But the court of appeals ultimately said no trial court, you got it wrong. Not only could the jury find in favor of Ms. Castro if the risk outweighed the benefits but also could find in favor of her if the consumer expectations were not met. And, in fact, the court went on to say, look, the pan apparently—although the court didn’t make this finding, it said the jury would have to look at it—the court pointed out that the pan was featured in a special Thanksgiving promotion at the QVC and as appropriate for roasting turkey and that apparently was not what happened because Ms. Castro sustained some very serious injuries. So Ms. Castro wasn’t entitled to win necessarily but what she was entitled to was having the jury told that this was a way she could win, that is if the pan did not perform according to her reasonable expectations.
CAVANAUGH: And is this litigation still underway?
EATON: Well, no. As far as I know, it was resolved. What I suspect happens, based on my research, is it was probably settled…
CAVANAUGH: I see.
EATON: …when it was turned back to the New York federal court. But it’s a very serious case and the injuries were really quite serious as you pointed out.
CAVANAUGH: Well, there’s another case about Thanksgiving here that’s not quite as serious. At the end of the Thanksgiving meal, our family—and I know lots of families—break the turkey’s wishbone. You know, you put the two kids pull on the wishbone and the one with the larger end gets their wish. Well, there’s a federal case decided last year in Washington state involving a wishbone but it wasn’t a real wishbone. What can you tell us about that?
EATON: No, it wasn’t and, I’ll tell you, I come from a family with three boys and I’m in the middle so you want to talk about a fight over a wishbone, there are only two people who get that particular opportunity. So there was always a fight. This was a fight over a wishbone in a very different way. And this actually – this case was not actually decided last year, it was decided actually a few years ago but, nonetheless, the case was – involved a plastic wishbone. What happened was a Seattle area man by the name of Ken Ahroni came up with this idea of plastic wishbones so that you wouldn’t have these fights. So that you have these plastic wishbones that are marketed across the country and apparently are quite lucrative. In 2005, for example, it earned around two -- $700,000, five years ago, excuse me. Five years ago, it earned over $700,000…
EATON: …so wishbones is pretty – apparently he got his wish anyway. But he came up with this idea of marketing plastic wishbones and sent the real wishbone from his 1999 Thanksgiving turkey, it was designed to be this plastic thing, it was marketed. What happened was, Sears ultimately contacted him and asked for a sample. Well, because Sears was going to include these plastic wishbones in what’s called a bounce back promotion. In other words, the wishbone, the plastic wishbone, was going to be included in a package with a $10.00 coupon that was good, that could be redeemed any of the four days before Thanksgiving. Everybody goes shopping the day after Thanksgiving, this was the four days before Thanksgiving. And what happened was, they looked at his prototype and said, oh, boy, this is really good. The problem is, they didn’t order them from Mr. Ahroni at nineteen cents apiece, they went over and had it manufactured in China for considerably less. And he wasn’t very happy about that.
CAVANAUGH: No, I can imagine. So what happened?
EATON: Well, he ultimately sued, and he sued for an awful lot of money, saying, look, there were over a million of these that you used in this packaging and so forth and I should be entitled to that profit. And, ultimately, what happened was the jury awarded the company, which is called Lucky Break Wishbone Corp., it’s still in business apparently. They even have a countdown to Thanksgiving, which I thought was kind of cute. But it awarded the company about $1.5 million in actual damages, which works out to a certain number of cents per wishbone and so on. And also sued the ad agency that had asked Lucky Break for its prototype. The question on appeal, because, of course, Sears wasn’t going to be happy nor was the ad agency, was whether that was really a grossly excessive verdict and, in fact, whether there could even be any damages at all under the circumstances. There was a big fight over who owned the prototype of the wishbone and who had actually come up with the idea. So there was a fight, so to speak, over the wishbone itself but, ultimately, the Court of Appeal said, you know what, no, I think there was enough evidence for the jury’s verdict and, therefore, guess what, Lucky Break Wishbone gets its wish again and it won and it got to keep the damages the jury awarded.
CAVANAUGH: It got the bigger end of the stick.
EATON: It did get the bigger end of the wishbone, yeah.
CAVANAUGH: Well, we end now with two cases that are from prison, filed by prisoners, one in Ohio and one in California. They claim that the celebration of Thanksgiving in some way violated their rights. Now, let’s start with the Ohio case.
EATON: Sure, let’s start with the Ohio case. Let’s give a little background first. According to Karen Paretsky, who handles these kinds of pro se or prisoner-initiated petitions with the federal court here in our local federal court here in San Diego, there are some 265 to 270 such cases that have been filed in San Diego alone year to date. So these are very common petitions which claim violations of prisoners’ rights in one form or another or a violation of some other right under federal law called Section 1983, which allows someone to sue for violation of a federal law against an official who violates their rights under color of legal authority. And so what happens is, this prisoner in particular in this particular case out of Ohio by the name of Maharatha (sp) Karmasu—if you’re listening, sir, and you’re free, I apologize—but what happened was he claimed that the prison dietician violated his rights of religious practice as a Hindi, which – and he was forbidden from eating meat. And how did he claim his religious rights were violated? He claimed they were violated because the dietician deceived him into eating turkey stuffing that had turkey in it.
CAVANAUGH: Oh. Okay, that’s interesting.
CAVANAUGH: So he thought he was just eating the stuffing but, indeed, there was turkey in the turkey stuffing.
EATON: Well, he was told it was turkey stuffing and he said, well, I didn’t think turkey stuffing had turkey in it…
EATON: …and that’s what he claimed in this pro se petition that he filed, and he claimed that it was a violation of his religious rights. The Court of Appeals didn’t take very well to this particular filing. It called it a, quote, frivolous appeal from a frivolous case, closed quote.
CAVANAUGH: And so why, though? I mean, if I were to get some stuffing and I wouldn’t necessarily find – want to find bits of meat in it but I don’t think that I would sue over it either. But the court found that that was sort of frivolous because you should expect if it’s called turkey stuffing that there might be some turkey in it.
EATON: That’s exactly right. They said, Mr. Karmasu, it was turkey stuffing, which part of that don’t you understand? And I’ve got a quote because the court clearly had a good time writing this opinion. Quote, if it did not have some part of the turkey in it, it would not be turkey stuffing. Milkshakes have milk. Egg noodles have eggs. Chili has chili powder. The state’s dietician was not being deceptive or intruding on Karmasu’s religious freedom by making turkey stuffing, putting turkey in it, calling it turkey stuffing and serving it to the prisoners. The court could’ve added, but didn’t, that he had a simple remedy and that was simply don’t eat the stuffing.
CAVANAUGH: Now we also come to another of these pro se cases, as you say, where the prisoner filed in 2007. This prisoner sued Thanksgiving itself.
EATON: Yeah, a holiday, I don’t get it. And it’s important to realize, even though we’re talking about two kind of goofy cases that the Section 1983 law that I’m talking about was enacted in 1871 and has been used to challenge serious prison conditions and so forth. So I don’t want to make it seem as though all these claims are frivolous. But what happened in this 2007 case, which was filed up in Northern California, was a prisoner by the name of Jonathan Riches sued Thanksgiving, Pilgrims Pride, the Cleveland Indians—I’m not making this up—but Mayflower Movers, and he claimed that his constitutional rights were violated by the celebration of Thanksgiving itself and sought to end Thanksgiving, the celebration of Thanksgiving altogether. And, by the way, he’d like $100 million. I’m not making this up. It’s low – it’s as though the Grinch sued Christmas. Not stole Christmas, sued Christmas. And so he sued and why he claimed that his constitutional rights were being violated, quote, because he cannot spend time with his friends and family, close quote, and that these defendants, a variety of private parties, were responsible for higher traffic and higher oil prices.
CAVANAUGH: Ah. I’d say this was too much time on his hands kind of a lawsuit.
EATON: Well, that’s right. In fact, that’s what Ms. Parets – somebody I talked to, I don’t remember if it was Ms. Paretsky or someone else. Someone who has a lot of time on his hands, but the court said, look, quote, the defendants named by the prisoner appear to be various private food companies, a baseball team, a holiday and a day after Thanksgiving. To the extent that any of these defendants are actual entities that may be sued, they are private organizations that do not act under color of state law, an essential element of a Section 1983 action, purely private conduct, no matter how wrongful, closed quote, is not covered under that law. In other words, the court couldn’t just say give me a break, the court treats these very seriously. That’s why Ms. Paretsky has the job of looking at all of these various pro se petitions and some of them are very serious indeed. The two that we’ve just been talking about, the court said not so much.
CAVANAUGH: Dismissed on a technicality.
EATON: Dismissed altogether, said it’s not under color of state authority, you can sue the Cleveland Indians but not for this.
CAVANAUGH: Well, Dan, I wish you a wishbone that is not made out of plastic.
EATON: Me, too. I don’t want to chip my teeth. Happy Thanksgiving, Maureen.
CAVANAUGH: Happy Thanksgiving. Thanks so much. I’ve been speaking with These Days legal analyst Dan Eaton. And if you have a comment about this segment, please go online, KPBS.org/TheseDays, and post your comments. Coming up, we’ll hear about San Diego’s new, improved Ronald McDonald House. You’re listening to These Days on KPBS.