Coyote v. AcmeAuthor(s): Ian FrazierSource: Litigation, Vol. 20, No. 3, SECRETS (Spring 1994), pp. 64, 58-59Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759712 .

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Literary

Trials

Coyote v.

Acme

by Ian Frazier

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 merchan? dise, incorporated in Delaware and

doing business in every state, district, and territory. Mr. Coyote seeks com?

pensation for personal injuries, loss of business income, and mental suffering caused as a direct result of the actions and/or gross negligence of said com?

pany, under Title 15 of the United States Code, Chapter 47, section 2072, sub? section (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 prod? ucts 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 posses? sion 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. Mr. Coyote states that on December

13th he received of Defendant via par? cel 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

? 1990 Ian Frazier. Originally in The New Yorker.

Rocket Sled accelerated with such sud? den 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 vio? lent jolt, causing severe strain to his back and neck and placing him unex?

pectedly astride the Rocket Sled. Dis?

appearing 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 pur? suing 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 brak?

ing system. Shortly thereafter, the unchecked progress of the Rocket Sled

brought it and Mr. Coyote into collision with the side of a mesa.

Paragraph One of the Report of

Attending Physician (Exhibit B), pre? pared 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 colli? sion. Repair of the injuries required a full bandage around the head (exclud? ing the ears), a neck brace, and full or

partial casts on 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 so violently as to leave a hole in the

shape of his full silhouette. Mr. Coyote states that on occasions

(Please turn to page 58)

Litigation Spring 1994 Volume 20 Number 3

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ment body were a party to the settle? ment, Muckraker might have a lever that would help her gain access even to an ?ftfiled settlement agreement.

With an agency as a party, the settle? ment agreement arguably would con? stitute a record created or maintained

by a public body, and it might be avail? able under an applicable freedom of information statute. Anchorage Sch.

Dist. v. Anchorage Daily News, 779 P.2d 1191, 1192-93 (Alaska 1989); Denver Pub. Co. v. University of Colo., 812 P2d 682, 684-85 (Colo. Ct. App. 1990); Des Moines Sch. Dist. v. Des

Moines Register & Tribune Co., 487 N.W.2d 666, 670-71 (Iowa 1992); Guy Gannett Pub. Co. v. University of Maine, 555 A.2d 470, 470-71 (Maine 1989). Darkness has descended. Your stom?

ach growls as you call Muckraker back later that evening to summarize your research, your motion, and your recom?

mendations. As you start to explain the

history behind the common-law right to access and the rules of civil proce? dure, Muckraker interrupts. "This sounds interesting, really it does," she

says, "but a disgruntled Blam-0

employee leaked all the documents to me an hour ago." Just as the air starts to

go out of your scholarly balloon, Muckraker says, "I'm glad you called

though, because I promised confiden?

tiality to my source at Blam-O. I can

keep that promise, can't I?" You tell Muckraker you'll call her

back tomorrow. Q

Agreements

that Work (Continued from page 21)

Second, even the most sensitive information gets old. It tends to become less sensitive over time. The

lapse between the filing of a complaint and trial often cools the need for confi?

dentiality. Parties who ardently seek

protection at the start may shrug off disclosure later. The reason is not nec?

essarily early dishonesty or excess enthusiasm. It is that protection of cer? tain information no longer is as impor? tant as it once was. This also helps explain why confidentiality agreements often need the closest attention, and

produce the most intense fights, in pre? liminary injunction or other short-term

interlocutory battles.

Sometimes a party in the case will not want to enter a confidentiality agreement at all. Plaintiffs particularly may want to resist any effort to restrict

public disclosure of what is learned in

discovery. This often occurs because

plaintiffs' attorneys want to use the information in other cases because they feel that the public interest is not served

by secrecy, or because they see a chance to embarrass the defendant or to

gain a public relations advantage. These are most often considerations in

products liability suits, in which infor? mation developed about (for example) an allegedly injurious design flaw is

thought to be able to assist other plain? tiffs, or may produce bad publicity for the manufacturer.

In seeking or opposing contested

protective orders, litigants must be attuned to the statutes and case law in the place where the litigation is pend? ing. Recent developments in both areas have created increased pressure for dis? closure?even of potentially sensitive business information?in which a pub? lic interest is thought to exist. This con? cern has largely grown out of fears that manufacturers are likely to settle

embarrassing personal injury claims on a condition of silence so that others will not learn about a problem. The particu? lar concern, which may not have any substantial relationship to reality, is that avoidance of disclosure and embarrass? ment will also keep dangerous products on the market and deny just compensa? tion to victims. This has led in many places to complete prohibition of cer? tain kinds of confidentiality agree?

ments. See Kiernan and Huttler, supra, cited above and Eckstein, "Can Prod? ucts Liability Cases be Secret" at page 22 in this issue.

As before, the lesson for a party seeking confidentiality is to have a nar? row, clear headed view of what infor? mation truly needs protection. As with cases approaching trial, litigants must have a two-tiered view of confidential?

ity. The protection they want may not be available for the first, larger tier? which embraces essentially every piece of information in the case and is based on little more than the hope that a pri? vate dispute will be kept private. An

attorney must be prepared, however, to insist on greater protection for informa? tion in the second tier, which often con

sists of the only information that the

party truly wants and needs to keep secret.

An agreement to give confidential treatment virtually to all information

developed in discovery is the easiest kind of arrangement to administer. But a party forced by opposition or law to

protect only the second tier often should face no more than logistical inconvenience?in the form of the time and energy needed to segregate and defend the particular information being withheld. Unless the dispute is one in which the public interest in openness is

particularly powerful, lawyers with a clear sense of what protection is truly needed usually will be able to get it by approaching confidentiality with prag? matism and flexibility. 10

Literary Trials

(Continued from page 64) too numerous to list in this document, he has suffered mishaps with explo? sives 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 evi? dence as Exhibit C.) Indeed, it is safe to

say that not once has an explosive pur? chased 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 begin? ning at the top of the butte and spi? ralling 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 bird? seed directly on the X, and then, carry? ing the spherical Acme Bomb (Cata? logue #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

Litigation Spring 1994 Volume 20 Number 3

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stem, causing the bomb to detonate. In addition to reducing all Mr. Coy?

ote's careful preparations to naught, the

premature detonation of Defendant's

product resulted in the following dis?

figurements 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 creak?

ing noise.

4. Full or partial combustion of whiskers, producing kinking, frazzling, and ashy disintegra? tion.

5. Radical widening of the eyes, due to brow and lid charring.

We come now 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 Bar? bara for analysis, but to date no expla? nation 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 posi? tion 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 the 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 lan?

yard release. Within a short time, Mr.

Coyote's prey did indeed appear on the

path coming toward him. Unsuspect? ing, the prey stopped near Mr. Coyote,

well within range of the springs at full extension. Mr. Coyote gauged the dis? tance 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 boul

der 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 and 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 boul? der, meanwhile, which was roughly ovoid in shape, had begun to bounce down a hillside, the coiling and recoil

Coyote

{Cants la trans),

ing 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, accordionlike

wheezing with every step. The distract?

ing 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 power, 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.

Mr. Coyote respectfully requests that the Court regard these larger economic

implications and assess punitive dam?

ages 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; gen? eral damages (mental suffering, injury to reputation) of twenty million dollars; and attorney's fees of seven hundred and fifty thousand dollars. Total dam?

ages: thirty-eight million seven hun? dred and fifty thousand dollars. By awarding Mr. Coyote the full amount, this Court will censure Defendant, its directors, officers, shareholders, suc? cessors, and assigns, in the only lan?

guage they understand, and reaffirm the

right of the individual predator to equal protection under the law. IS

From the

Bench

(Continued from page 4)

sophisticated level and has devoted time and effort to doing so, oral argu?

ment can be a disaster. The worst thing?the very worst

thing?a lawyer can do at oral argu? ment is to read his presentation. If the court has read the briefs?and my court does?there is nothing more boring than to hear a lawyer read a digest of his brief. Our rules direct lawyers not to do this, but we see it tried all too often. Or, as a minor variation on the same

discouraging theme, a lawyer will try to pretend he is only "consulting his

Litigation Spring 1994 Volume 20 Number 3

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