Sepia Saturday 296: A Cautionary Tale

 

Sepia Saturday's photo this week points to topics: advertising, wine or labels. As the temperature is 97 degrees here today and we're sweltering, I can't budge my brain into gear to write something original; scrolling around my blog archives I realized I've written quite often about labels as I was heavily involved with creating them during my career in the food business. My contribution to the process was primarily technical -  making the ingredient declaration as accurate and compliant as possible; writing use and care directions if they were necessary and providing nutritional information. If there was a photo of the product involved I would be on the set with the photographer to assure the image was representative of the contents. 

In the throes of label development when I needed a laugh, I'd pull this package out of my files and chuckle away. Of course, it's a novelty item but it does make use of scientific calculations as the concept of shrinkage-to-fit necessitates some figuring. The equation they recommend is:

illusionary hair = area of bald skin/size of head

You might be pleased to read that Preparation Z reduces head size by about one-half, yet leaves the hair shiny and manageable. The back label states that the product works on all heads and body parts so one should read and observe the cautions carefully. I note that the usual shampoo exhortation to "lather, rinse, repeat" is not included here.

Preparation Z's shrinkage suggestion may be a bit of a stretch (groan) for this week's theme. 
I'm getting to my point here...forgive me, it's hot and I'm getting cranky. Everyone faced with the daunting task of writing cautions for products in today's litigious times, has had nightmares about being sued by someone who does something unimaginable with your product. In my case, I once developed a fat-free cheese sauce for a client (back when fat was the dietary punching bag of the day) - five years later I got a call from a radio station in Texas, who tracked me down as the developer, asking if there was anything in the sauce that could be damaging if it contacted a person's eyes. My first reaction was to ask why that would that would even be an issue. Surely nobody would be putting the stuff in their eyes... then I learned about the contest they were running which involved filling a hot tub with the cheese sauce and then throwing a truck's keys into the tub. Contestants would dive into the tub and attempt to retrieve the keys. The first person to be successful won the truck. The point here is you never know what your consumer has in mind when they buy 100 cases of cheese sauce. 
If I have a favorite story regarding advertising/labeling litigation, it's the Coyote V. Acme case......the story follows:
"Live by the Super Slick Jet Propulsion Automated Explosive Metal-Shearing Heat-Seeking Laser-Guided Razor-Edged Boomerang, die by the Super Slick, etc."  Stephen Menard

Coyote V. Acme
IN THE UNITED STATES DISTRICT COURT,
SOUTHWESTERN DISTRICT, TEMPE, ARIZONA
CASE NO. B19294, JUDGE JOAN KUJAVA, PRESIDING
Wile E. Coyote, Plaintiff
-v.-
Acme Company, Defendant
Opening Statement of Mr. Harold Schoff, attorney for Mr. Coyote:
My client, Mr. Wile E. Coyote, a resident of Arizona and contiguous states, does hereby bring suit for damages against the Acme Company, manufacturer and retail distributor of assorted merchandise, incorporated in Delaware and doing business in every state, district, and territory. Mr. Coyote seeks compensation for personal injuries, loss of business income, and mental suffering caused as a direct result of the actions and/or gross negligence of said company, under Title 15 of the United States Code, Chapter 47, section 2072, subsection (a), relating to product liability.
Mr. Coyote states that on eighty-five separate occasions he has purchased of the Acme Company (hereinafter, "Defendant"), through that company's mail-order department, certain products which did cause him bodily injury due to defects in manufacture or improper cautionary labeling. Sales slips made out to Mr. Coyote as proof of purchase are at present in the possession of the Court, marked Exhibit A. Such injuries sustained by Mr. Coyote have temporarily restricted his ability to make a living in his profession of predator. Mr. Coyote is self-employed and thus not eligible for Workmen's Compensation.

Chuck Jones

Mr. Coyote states that on December 13th he received of Defendant via parcel post one Acme Rocket Sled. The intention of Mr. Coyote was to use the Rocket Sled to aid him in pursuit of his prey. Upon receipt of the Rocket Sled Mr. Coyote removed it from its wooden shipping crate and, sighting his prey in the distance, activated the ignition. As Mr. Coyote gripped the handlebars, the Rocket Sled accelerated with such sudden and precipitate force as to stretch Mr. Coyote's forelimbs to a length of fifty feet. Subsequently, the rest of Mr. Coyote's body shot forward with a violent jolt, causing severe strain to his back and neck and placing him unexpectedly astride the Rocket Sled. Disappearing over the horizon at such speed as to leave a diminishing jet trail along its path, the Rocket Sled soon brought Mr. Coyote abreast of his prey. At that moment the animal he was pursuing veered sharply to the right. Mr. Coyote vigorously attempted to follow this maneuver but was unable to, due to poorly designed steering on the Rocket Sled and a faulty or nonexistent braking system. Shortly thereafter, the unchecked progress of the Rocket Sled brought it and Mr. Coyote into collision with the side of a mesa.

Chuck Jones

Paragraph One of the Report of Attending Physician (Exhibit B), prepared by Dr. Ernest Grosscup, M.D., D.O., details the multiple fractures, contusions, and tissue damage suffered by Mr. Coyote as a result of this collision. Repair of the injuries required a full bandage around the head (excluding the ears), a neck brace, and full or partial casts of all four legs.

Hampered by these injuries, Mr. Coyote was nevertheless obliged to support himself. With this in mind, he purchased of Defendant as an aid to mobility one pair of Acme Rocket Skates. When he attempted to use this product, however, he became involved in an accident remarkably similar to that which occurred with the Rocket Sled. Again, Defendant sold over the counter, without caveat, a product which attached powerful jet engines (in this case, two) to inadequate vehicles, with little or no provision for passenger safety. Encumbered by his heavy casts, Mr. Coyote lost control of the Rocket Skates soon after strapping them on, and collided with a roadside billboard to violently as to leave a hole in the shape of his full silhouette.

Chuck Jones

Mr. Coyote states that on occasions too numerous to list in this document he has suffered mishaps with explosives purchased of Defendant: the Acme "Little Giant" Firecracker, the Acme Self-Guided Aerial Bomb, etc. (For a full listing, see the Acme Mail Order Explosives Catalogue and attached deposition, entered in evidence as Exhibit C.) Indeed, it is safe to say that not once has an explosive purchased of Defendant by Mr. Coyote performed in an expected manner.

To cite just one example: At the expense of much time and personal effort, Mr. Coyote constructed around the outer rim of a butte a wooden trough beginning at the top of the butte and spiraling downward around it to some few feet above a black X painted on the desert floor. The trough was designed in such a way that a spherical explosive of the type sold by Defendant would roll easily and swiftly down to the point of detonation indicated by the X. Mr. Coyote placed a generous pile of birdseed directly on the X, and then, carrying the spherical Acme Bomb (Catalog #78-832), climbed to the top of the butte. Mr. Coyote's prey, seeing the birdseed, approached, and Mr. Coyote proceeded to light the fuse. In an instant, the fuse burned down to the stem, causing the bomb to detonate.

In addition to reducing all Mr. Coyote's careful preparations to naught, the premature detonation of Defendant's product resulted in the following disfigurements to Mr. Coyote:

1	Severe singeing of the hair on the head, neck, and muzzle.
2	Sooty discoloration.
3	Fracture of the left ear at the stem, causing the ear to dangle in the aftershock with a creaking noise.
4	Full or partial combustion of whiskers, producing kinking, frazzling, and ashy disintegration.
5	Radical widening of the eyes, due to brow and lid charring.

We now come to the Acme Spring-Powered Shoes. The remains of a pair of these purchased by Mr. Coyote on June 23rd are Plaintiff's Exhibit D. Selected fragments have been shipped to the metallurgical laboratories of the University of California at Santa Barbara for analysis, but to date no explanation has been found for this product's sudden and extreme malfunction. As advertised by Defendant, this product is simplicity itself: two wood-and-metal sandals, each attached to milled-steel springs of high tensile strength and compressed in a tightly coiled position by a cocking device with a lanyard release. Mr. Coyote believed that this product would enable him to pounce upon his prey in the initial moments of his chase, when swift reflexes are at a premium.

To increase the shoes' thrusting power still further, Mr. Coyote affixed them by their bottoms to the side of a large boulder. Adjacent to the boulder was a path which Mr. Coyote's prey was known to frequent. Mr. Coyote put his hind feet in the wood-and-metal sandals and crouched in readiness, his right forepaw holding firmly to the lanyard release. Within a short time Mr. Coyote's prey did indeed appear on the path coming toward him. Unsuspecting, the prey stopped near Mr. Coyote, well within range of the springs at full extension. Mr. Coyote gauged the distance with care and proceeded to pull the lanyard release.

At this point, Defendant's product should have thrust Mr. Coyote forward and away from the boulder. Instead, for reasons yet unknown, the Acme Spring-Powered Shoes thrust the boulder away from Mr. Coyote. As the intended prey looked on unharmed, Mr. Coyote hung suspended in air. Then the twin springs recoiled, bringing Mr. Coyote to a violent feet-first collision with the boulder, the full weight of his head of forequarters falling upon his lower extremities. The force of this impact then caused the springs to rebound, whereupon Mr. Coyote was thrust skyward. A second recoil and collision followed. The boulder, meanwhile, which was roughly ovoid in shape, had begun to bounce down a hillside, the coiling and recoiling of the springs adding to its velocity. At each bounce, Mr. Coyote came into contact with the boulder, or the boulder came into contact with Mr. Coyote, or both came into contact with the ground. As the grade was a long one, this process continued for some time.

The sequence of collisions resulted in systemic physical damage to Mr. Coyote, viz., flattening of the cranium, sideways displacement of the tongue, reduction of length of legs and upper body, and compression of vertebrae from base of tail to head. Repetition of blows along a vertical axis produced a series of regular horizontal folds in Mr. Coyote's body tissues---a rare and painful condition which caused Mr. Coyote to expand upward and contract downward alternately as he walked, and to emit an off-key, accordion-like wheezing with every step. The distracting and embarrassing nature of this symptom has been a major impediment to Mr. Coyote's pursuit of a normal social life.

As the Court is no doubt aware, Defendant has a virtual monopoly of manufacture and sale of goods required by Mr. Coyote's work. It is our contention that Defendant has used its market advantage to the detriment of the consumer of such specialized products as itching powder, giant kites, Burmese tiger traps, anvils, and two-hundred-foot-long rubber bands. Much as he has come to mistrust Defendant's products, Mr. Coyote has no other domestic source of supply to which to turn. One can only wonder what our trading partners in Western Europe and Japan would make of such a situation, where a giant company is allowed to victimize the consumer in the most reckless and wrongful manner over and over again.

VICTIM Chuck Jones

Mr. Coyote respectfully requests that the Court regard these larger economic implications and assess punitive damages in the amount of seventeen million dollars. In addition, Mr. Coyote seeks actual damages (missed meals, medical expenses, days lost from professional occupation) of one million dollars; general damages (mental suffering, injury to reputation) of twenty million dollars; and attorney's fees of seven hundred and fifty thousand dollars. Total damages: thirty-eight million seven hundred and fifty thousand dollars. By awarding Mr. Coyote the full amount, this Court will censure Defendant, its directory, officers, shareholders, successors, and assigns, in the only language they understand, and reaffirm the right of the individual predator to equal protection under the law.

Ian Frazier, The New Yorker, February 26, 1990, p. 42--43.

---

Reply to Wile E. Coyote v. ACME Company suit

Chuck Jones
Mr. Coyote with typical murderous intent as viewed by the Acme Company

jimm@io.com (Jim Menard)

(funny, parody, cartoons)

[My brother, Stephen Menard, is a litigation attorney at a defense firm in Philadelphia. He wrote this reply to the "Wile E. Coyote sues ACME" post which appeared here a few weeks ago. Any errors in this post were introduced by me. --Jim]

UNITED STATES DISTRICT COURT
SOUTHWESTERN DISTRICT OF ARIZONA

WILE E. COYOTE,   : 
 Plaintiff  : 
    : 
v.    : CIVIL ACTION NO. B19294 
    : 
ACME COMPANY,   : 
 Defendant  : 

OPENING STATEMENT OF ARTHUR B. FUDDLE, ESQUIRE,
COUNSEL FOR DEFENDANT

By Mr. Fuddle:

Ladies and Gentleman of the jury: the opening statement you have just heard from Mr. Schoff on behalf of the plaintiff, Wile E. Coyote, paints an incomplete picture of what occurred on the occasions when Mr. Coyote claims he was injured by ACME products.

The evidence will clearly show that my client, ACME Products Corp., a Division of Dangerously Innovative Products and Patents Incorporated (or "DIPPI") is not at fault in this matter, and that any injuries sustained by the plaintiff were clearly caused by his own negligence, assumption of the risk and/or misuse of the products.

Now, we have all seen the footage on television of the plaintiff withstanding various injuries which appear to be caused by ACME's products. You have seen over and over the tape of a hapless coyote being bludgeoned by a boulder as he is helplessly trapped by his ACME Spring Loaded Shoes. We have all seen the photographs taken at Warner Memorial Hospital of Mr. Coyote in a very small incubator, on life support, as his doctors attempt to straighten out the accordion-like folds from his body. We have all seen the gruesome images of the operation in which Dr. Tazmanian D. Devil whirls like a dervish, obscuring his features and creating a starry, "dust cloud" effect, while numerous limbs holding various surgical instruments swiftly repair the nerve damage to Mr. Coyote's extremities.

It is normal for any human being to feel pity, horror, and even anger at such images. I want you to put those images aside for the moment, because they paint an incomplete picture. What the media has not disclosed to you, and what you will see in this courtroom, are various attempts at murder committed by the plaintiff - attempts which, fortunately, failed - while using my client's products. As the plaintiff readily admits, he is a predator, and his sole function in life is to track down and kill an innocent, highway traversing ornithoid.

You see, ladies and gentleman, while the plaintiff is a natural predator, he is not a very good one. His own skills were inadequate to complete the task at hand, so he chose to seek the aid of various devices to effectuate his diabolical schemes. He looked in a catalogue, saw my client's products, and ordered them in the hope that they would assist him in killing his prey.

But ladies and gentleman, ACME's products are not meant to cause intentional harm to anyone. The plaintiff has taken what were designed as amusements, toys for the young and feebleminded, and has twisted their use to his own purposes.

But I digress. Let us examine the plaintiff's claims and how the evidence clearly refutes the proposition that ACME is responsible for any harm sustained by the plaintiff. Mr. Coyote states that on December 13 he received an ACME Rocked Sled, that he attempted to use said rocket sled to pursue his prey, and that, upon igniting the sled, it accelerated with "sudden and precipitate force as to stretch Mr. Coyote's forelimbs to a length of fifty feet."

There are several reasons why ACME cannot be held responsible for any injuries caused by this incident. First, the warning label attached conspicuously to the inside of the left front tire of the sled clearly stated, and I quote: "WARNING: IGNITION OF THIS DEVICE AT FULL THROTTLE MAY CAUSE SUDDEN AND PRECIPITATE FORCE AS TO STRETCH USER'S FORELIMBS TO A LENGTH OF UP TO SIXTY FEET, OR MAY CAUSE DEATH." That the plaintiff suffered so little as a result of his carelessness can be attributed only to Providence.

Second, Arizona law is clear on this point: a plaintiff who is found to be violating any law whose purpose is safety at the time of his injury is contributorily negligent *per se*. There is ample evidence that Mr. Coyote was violating both the laws of gravity and inertia at the time of this incident, and thus he is responsible for his own woes.

I could list many more examples of Mr. Coyote's negligent conduct in connection with his use of ACME's products, but you will hear all about them as the trial goes on. You will also hear the following evidence:

1. You will hear the plaintiff himself testify that, prior to the injuries complained of in this accident, he has suffered numerous injuries. As an example, on one occasion prior to the use of any ACME product, the plaintiff cornered his prey on the edge of a rather thin precipice. Taking an ordinary saw, the plaintiff began cutting away so that the edge of the cliff, with his prey on it, would drop some 1500 feet to a jagged, rocky destruction. Instead, by some inexplicable twist of fate the edge of the cliff remained standing while the whole mountain, on which the plaintiff was standing, plummeted to the bottom of the ravine, causing numerous injuries which affect the plaintiff to this day.
2. On another occasion, Mr. Coyote was chasing his prey and followed it off of the edge of a cliff onto thin air, not realizing until too late that his prey, a bird, could remain in the air almost indefinitely while he, a canine, could not. As a result, he fell yet again, suffering even further severe and debilitating injuries which predate the injuries complained of in this action.
3. You will also hear the testimony of Mr. Road Runner, the plaintiff's prey and the true victim in this tragedy. Mr. Runner has been forced to live a nomadic lifestyle as a result of Mr. Coyote's unwanted attention, preventing him from forming any type of long term relationships. Numerous restraining orders had no effect. Mr. Runner has also suffered numerous psychological problems as a result of Mr. Coyote's actions, including but not limited to an inability to trust anyone who provides him with bird seed, a necessary ingredient in his daily nutritional schedule.
4. You will also hear from a witness to many of the incidents alleged in plaintiff's complaint, a colorful local prospector with red hair and moustache who has been known to proclaim: "No rootin' tootin' coyote can outsmart Yosemite Sam on any day of the week!" Don't be fooled by his gruff manner and twin pearl-handled six-shooters, he's a pussycat.
5. Customer service records of defendant ACME, which we were forced to produce in this matter, clearly show that none of the complaints registered by ACME's customers nation-wide have ever resulted in criminal convictions of the officers of the corporation.
6. Finally, videotape evidence will demonstrate that plaintiff faked many of his injuries, setting out to create performances especially for a jury such as yourself. On numerous occasions he would "mug" for the camera, as if he was well aware beforehand that he was being taped. For instance, during the "Rocked Sled" incident, as his forelimbs were stretched out ahead of him and his body remained behind, he looked straight into the camera with a forlorn, tired expression, as if to say: "look at how terrible my situation is, can you guess what's going to happen to me now." This jury is too smart to fall for such petty theatrics.

In summary, ladies and gentlemen, it will be clear to you from the evidence that ACME's products, if used properly, will cause only minimal injuries to a user and his loved ones. The plaintiff in this case has brought his troubles upon himself by adopting his carnivorous lifestyle. As others have so adequately uttered: "Live by the Super Slick Jet Propulsion Automated Explosive Metal-Shearing Heat-Seeking Laser-Guided Razor-Edged Boomerang, die by the Super Slick, etc."

I ask you, on behalf of my client, to dismiss the plaintiff's claims against it.

Note: Mr. Fuddle was likely unaware of how deeply notorious Mr. Coyote was.  To wit: TV Guide included Wile E. Coyote in their 2013 list of The 60 Nastiest Villains of All Time.

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