TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, April 10, 2008

Wal-Mart Video Archive Helpful in Products Suit

Consumerist has a post (based on a WSJ piece) about the second life of thirty years of videos made for Wal-Mart.  The company that did the work evidently retained the rights (oops on Wal-Mart) and Wal-Mart declined to pay as much as the company asked.  Now the company is selling access and it's helped at least one plaintiffs' lawyer:

Plaintiffs attorney Diane M. Breneman stumbled across the videos while working on a lawsuit she filed in 2005, on behalf of a 12-year-old boy, against Wal-Mart and the manufacturer of a plastic gasoline can sold in its stores. Her client was injured when he poured gasoline from the container onto a pile of wet wood he had been trying to light, and the can exploded. The lawsuit alleges that the containers are unsafe because they don't contain a device that prevents flames from jumping up the spout and exploding.

Wal-Mart's lawyers have argued in court filings that the retailer couldn't have known that the product "presented any reasonable foreseeable the normal and expected use."

* * *

Ms. Breneman says Flagler Productions located videos of product presentations to Wal-Mart managers in which executives gave parody testimonials about the same brand of gasoline can. In an apparent coincidence, one manager joked about setting fire to wet wood: "I torched it. Boom! Fired right up." In a separate skit, an employee is seen driving a riding lawn mower into a display of empty gasoline cans. A Wal-Mart executive vice president observing the collision jokes: "A great gas can. It didn't explode." The tapes were made before the lawsuit was filed.

Ms. Breneman argues the footage provides evidence that the retailer could have foreseen the risk that customers would use the gas cans when starting fires. She says she plans to ask the Kansas City, Mo., federal court handling the case to allow the footage to be used as evidence. Wal-Mart's lawyer on the case didn't return calls seeking comment.


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A better defense would be that knucklehead, criminal arson by a little terrorist should not be rewarded with a civil judgment. The trial should get bifurcated. I know there will be a trial because all judges are lawyers, and biased. They favor lawyer rent seeking no matter how unjust the claim.

If all burned, the plaintiff should be excluded from the court the entire trial. His appearance is "inflammatory," has no probative value. It violates the procedural due process right to a fair hearing of the civil defendant, from outcome bias.


I would like to see the bloggers here interview the GC of Walmart. How are 10,000 lawsuits all the time managed?

Is the policy of employing more female and minority lawyers cynical, because of their lower prices, everyday?

They fire the defense lawyer if a preliminary motion fails. Does that work, and not raise costs when the new lawyer has to learn the case?

Has he thought about Walmart as a factor in foreign policy? With all that trade with China, is Walmart making it impossible for China to get aggressive?

Does he have any insider stuff from his tenure at the Rose law firm in the Hillary days?

Posted by: Supremacy Claus | Apr 11, 2008 4:49:12 AM

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