A box of Blistex brand medicated lip ointment.

Forget lighting advent candles or trimming the tree—one of my favorite holiday traditions is the U.S. Chamber Institute for Legal Reform annual list of the year's Top 10 Most Ridiculous Lawsuits.

I still firmly believe that the worst lawsuit of 2019 was filed by the guy who sued his ex-girlfriend for $225,000 because she broke up with him. But since Syed Husain's claim has nothing to do with tort reform, it wasn't on the ILR's radar.

Instead, the ILR's pick for most frivolous lawsuit of the year is a putative class action against Blistex Inc. that claims the lip balm's packaging is deceptive. 

Plaintiff Heather Erwin complains that Blistex packaging states that the product contains .15 ounces of lip balm, but 11% of it is actually stuck to the bottom. 

That last bit "cannot by applied without taking apart the Blistex Stick, digging the Lip Balm out of the product packaging, and applying it with fingers," according to the complaint, which was filed in St. Clair County, Illinois circuit court by David C. Nelson of Nelson & Nelson in Belleville, Illinois and Matthew H. Armstrong of the Armstrong Law Firm in St. Louis, Missouri, according to the Madison-St. Clair Record.

This was "not what plaintiff and class members bargained for when they chose to purchase the stick over other packaging."

What makes the suit especially stupid (which the ILR doesn't point out) is that another woman already sued Blistex in Illinois federal court, asserting more or less the same claims under the same statute, the Illinois Consumer Fraud and Deceptive Business Practices Act.

As far as I can tell, the main difference between the suits is that the first plaintiff, Alana Hillen, complained about Blistex in a squeezable tube rather than a stick. 

U.S. District Judge Elaine Bucklo curtly dismissed the suit in 2017—and her rationale would seem equally applicable here. 

"Plaintiff tacitly concedes that consumers expect some amount of product to remain in the tube," Bucklo wrote. "Indeed, as other courts have observed, consumers are generally aware that they may not be able to extract every bit of common products such as 'toothpaste, peanut butter, shampoo, and many other products' from their packaging. Put simply, plaintiff's disappointment in defendant's tube design does not establish deception, nor does it transform defendant's accurate labeling of the product's net weight into fraud by omission."

As for trying to extract that last bit of balm with your fingers, that's up to the consumer. "That plaintiff views that solution as 'messy,' 'inconvenient,' or otherwise undesirable does not render defendant's tube design unfair or deceptive," the judge wrote.

Nelson did not return a call seeking comment and Armstrong could not be reached for comment.

I'm partial to the number two entry on the ILR's list of shame—"Trial Lawyers' Expert Witness Falls Apart on the Stand" —since it seems to be based on one of my columns, How Wilkinson Walsh + Eskovitz Partners Shredded Witnesses in $600M Save for Bayer.

In February, I wrote about a $600 million consumer class action that alleged Bayer AG made false and misleading claims that its One A Day multivitamin supported heart health, immunity and physical energy.

Armed with hundreds of pages of trial transcripts, I dissected the way Wilkinson Walsh + Eskovitz name partner Sean Eskovitz destroyed the plaintiffs' expert on cross examination, getting the doctor to admit that both he and his wife take multi-vitamins and that the vitamins and minerals in One A Day do help support heart health, immune health and physical energy.

Here's how the ILR summed it up: The expert "was supposed to help them make the case that there are no health benefits to the daily vitamin. But their claims fall apart in the hands of their key witness… As you might imagine, this $600 million class action lawsuit was barely on life support after the doctor all but admitted the plaintiffs' lawyers had no case."

That said, I don't think it's fair to call the case frivolous—it survived a motion to dismiss and was certified as a class by U.S. District Judge William Orrick in San Francisco. I credit skilled lawyering by Eskovitz and his law partner Alexandra Walsh for the decisive win.

Be sure to check out the ILR's cartoon video of the cross, where Eskovitz is depicted like some chisel-jawed legal superhero in a well-tailored suit. 

Here's the rest of the ILR's list:

Trial Lawyers Have a Cow Over Vegan Butter Labeling (Brooklyn, New York)

Woman Sues New York City Over "Scary" Poster Promoting Dexter (New York, New York

 California Coffee House Sued Over Warning Labels (Pasadena, California)

Customer Sues Friendly's Ice Cream Over Vanilla Ingredients (Brooklyn, New York)

 NBA Player's Lawyers Tried to Game the System (New Orleans, Louisiana)

Gamer Sues Fortnite Over Dance Competition Entry (Los Angeles, California

 Dog Owner Gets Sued for Online Review (DeLand, Florida)

Man Sues Godiva over Labeling (Washington, DC)