Brew-Hoo: Be Careful What You Witch For This Halloween

By: Steven R. Diaz, Esq.

 

As any defendant will tell you, there is nothing scarier than a lawsuit lurking in the dark. Litigation can be the stuff of nightmares, after all. This is particularly true for the unfortunate souls who are served with a products liability complaint in California. This area of law can be tricky, and the process is certainly no treat. A local witch and small business owner, who will be referred to here as “Hazel” to protect her identity, experienced this first-hand.

Hazel is a gifted witch who operates a small business high in the hills above Malibu. She manufactures Witches’ Brew, and other top-notch potions, draughts, and elixirs. Hazel’s shop frequently advertises itself as the best in the country, and her recipes have been with her family for centuries. That is why it came as a complete shock when Hazel’s company was sued in a products liability action. The Plaintiff, a first-time customer at Hazel’s shop, alleged that he purchased Hazel’s Witches’ Brew, and immediately fell ill after consuming it. Plaintiff argued that the Witches’ Brew was designed to bring him good karma for no less than two weeks before, and two weeks after, All Hallows’ Eve. Instead, the Brew allegedly caused Plaintiff to develop a third eye, break out in scales across his body (which resulted in permanent scarring), and to constantly be followed by a group of thirteen black cats. Hazel denied Plaintiff’s allegations, and the case went to trial.

Under relevant California law, two different tests may be used when assessing liability under a design defect claim. The Court usually determines whether to apply (1) the Consumer Expectation Test, or (2) the Risk-Benefit Test. Plaintiffs usually include both in their Complaint.

Under the Consumer Expectation Test, a plaintiff must prove that the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to when used, or misused, in a reasonably foreseeable way. The product’s failure to perform safely must be a substantial factor in causing plaintiff’s harm. In Hazel’s case, Plaintiff’s counsel argued that the Witches’ Brew caused his client great harm instead of bringing the promised good karma, and thus failed the Consumer Expectation Test.

Plaintiff also argued in favor of application of the Risk-Benefit Test. Under this analysis, California plaintiffs must prove that they were harmed by a defendant’s product, and that the product was a substantial factor in causing the harm. The burden then shifts to the defendant to prove that the benefits of their product outweigh the risks of the design. The jury may consider a variety of factors, including, but not limited to, the gravity of the potential harm, and the feasibility/cost/disadvantages of an alternative design.

During trial, Plaintiff pointed to Hazel’s use of several allegedly unsafe ingredients, including fillet of a fenny snake, blind-worm’s sting, and howlet’s wing, as proof that her Witches’ Brew was defectively designed. Plaintiff argued that there were many feasible alternative designs for the Witches’ Brew, many of which included synthetic forms of eye-of-newt and scale of dragon. Plaintiff argued that use of designs that incorporated these synthetic ingredients would have greatly reduced the risk of harm. Hazel’s attorneys countered that synthetic eye-of-newt and dragon scales are nothing like their non-synthetic counterparts, and would severely reduce the potency and effectiveness of Hazel’s Witches’ Brew.

Ultimately, the jury (composed of four mortals, two werewolves, three zombies, two ghosts, and a vampire) returned a full defense verdict in favor of Hazel. The jury revealed in post-verdict interviews that they were greatly impacted by Plaintiff’s admission on cross-examination that he mixed Hazel’s Brew with a Witches’ Brew made by one of Hazel’s primary competitors in Salem, Massachusetts, prior to ingestion. The combined brews likely resulted in an overdose of Lizard’s Leg (which would explain many of Plaintiff’s symptoms). The jury also found that Hazel’s Brew’s benefits outweighed the risks, despite her use of some unorthodox ingredients. We offer our congratulations to Hazel and her counsel on a job well done.

On behalf of Bradley & Gmelich LLP, we also wish you all a safe and delightful Halloween this year! Watch out for ghouls and goblins, and don’t hesitate to reach out to us if you find yourself in a situation similar to Hazel’s, or if we can be of assistance on any other issue. 

Steven R. Diaz is a graduate of California State University, Northridge with a degree in Political Science. He earned his law degree from Southwestern University School of Law in 2011 where he gained valuable experience as a judicial extern for the Honorable Carlos Chung of the Los Angeles County Superior Court, and as a law clerk for the Public Safety Division of the Office of the Los Angeles City Attorney. Additionally, Mr. Diaz served two years as a member of Southwestern Law School’s prestigious and highly competitive Negotiation Honors Program.

Mr. Diaz has extensive experience handling industrial exposure/toxic tort, product liability, multi-plaintiff and multi-unit habitability cases. Additionally, he also handles employment, premises liability and general liability litigation. He is admitted to the State Bar of California as well as the United States District Court, Central District of California.  

Congratulations to Partner Lindy F. Bradley for a successful settlement in a premises liability case.  Plaintiff sued our client, a popular outdoor shopping mall for injuries sustained when plaintiff tripped over a forklift in our client's parking lot. Plaintiff initially claimed closed head injuries, facial lacerations, and other related injuries. Ms. Bradley persuaded the tenant located at our client's property, to accept tender for defense and indemnity and repay our client in post tender fees and costs . Great job Lindy!

Pictured from left, Barry Bradley Esq., Roy Rahn, CPP, Mark Mooring, CPP, Jaimee Wellerstein, Esq. David Chandler, Bonnie Michelman, CPP, Geoff Craighead, CPP (hiding!), Matt Thomas, CPP, and Kathryn Canale, Esq. (Linda Florence, CPP not pictured.)

Congratulations to Barry Bradley, Jaimee Wellerstein, Kamil Canale and a fantastic team of security experts on a very successful mock trial presentation which took place at the annual ASIS International Seminar & Exhibits, which drew about 20,000 security professionals to Dallas. The mock trial was held on September 26, 2017, and addressed a domestic bombing arising out of a workplace violence fact pattern. The audience was not only educated on how security policies and procedures can lead to disastrous results, but they were thoroughly entertained as well! Great job team!

Partners Barry A. Bradley, and Jaimee K. Wellerstein, will be presenting two seminars for the private security industry this month. They will provide insight to new security companies and to those new to the security industry in a PPO 101 class presented by the California Association of Licensed Security Agencies, Guards & Associates ( CALSAGA) on October 17 ^th. In addition, they will be presenting a comprehensive Legal Update Affecting the California Security Industry, in which they will address licensing, employment-related issues facing employers, new laws, as well as recent court decisions impacting the security world. The annual CALSAGA “Voice of the Industry" conference will be held on October 18 ^th-19th in Rancho Mirage. Contact www.calsaga.org for information.

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The children and pets of our B&G partners and employees join together to wish you a Happy and Safe Halloween!