Hot tea lawsuit has interesting procedural quirk

by Ted Frank on November 25, 2008

One can almost fill an entirely separate blog with variations on the McDonald’s hot coffee case. In Manhattan, 77-year-old Rachel Moltner ordered a hot tea from a Starbucks, but had trouble removing the tightly-secured lid, spilling the beverage all over her. (You will recall other lawsuits complaining that the Starbucks lids are not tight enough.) Moltner not only blames Starbucks for her resulting second- and third-degree burns (and recall that the raison d’être of the Stella Liebeck suit was the false claim that only McDonald’s served beverages that were hot enough to cause third-degree burns), but for the broken bones she suffered when she fell out of bed in Lenox Hill Hospital while being treated for burns. Moltner’s asking for $3 million.

Press coverage in the NY Post (h/t P.G.) is short on legal details (though one is encouraged to see Starbucks publicly defending themselves, an apparent change in policy). But I’ve downloaded and uploaded the complaint, which was filed in state court and removed to federal court. The kitchen-sink allegations include a defective cup, defectively hot tea, and a failure to warn. Right now the parties are haggling over federal removal jurisdiction, as Starbucks waited more than thirty days after receiving the complaint–until a formal demand for money was made–to seek removal. This is an interesting example of sandbagging; if defendants remove cases simply on the possibility that alleged damages will exceed the amount-in-controversy requirement, they may incorrectly remove cases that should remain in state court, but if they wait for the formal confirmation from the plaintiff, they may face the allegation that they’ve missed the 30-day window to remove a case–something to consider when plaintiffs’ attorneys complain that defendants reflexively remove cases to federal court that don’t belong there. Moltner has a good argument that Starbucks waited too long to remove, because alleged damages would have clearly exceeded $75,000 despite the lack of an ad damnum clause in the complaint citing a number, but the consequence of such a ruling will be that defendants will be forced to prematurely remove cases that perhaps should not be removed. (Moltner v. Starbucks Coffee Co., #: 1:08-cv-09257-LAP-AJP (S.D.N.Y.)).

{ 18 comments }

1 PhilG 11.25.08 at 11:53 am

Just as it alwys seems to be senior citizens who plow into a store front, mistaking the accelerator for the brake pedal, it’s another senior citizen again this time doing stupid things with a burning hot drink. It looks like the AARP represents a fertile marketing opportunity for the personal injury lawyers.

2 Bill Poser 11.25.08 at 12:00 pm

Surely the court will dismiss the suit on the grounds that no one orders tea in a Starbucks. :)

3 PhilG 11.25.08 at 12:44 pm

I just discovered that one can order a drink with “kid’s temperature” at Starbucks. Perhaps Starbucks (and other coffee chains)need to also serve drinks with “Senior Citizen Temperature” either on request or automatically (to protect Starbucks from this sort of lawsuit)to senior citizens. But of course if they did automatically serve all senior citizens with “Senior Citizen Temperature” drinks, they would open themselves up to a class action lawyer claiming age discrimination.

4 Todd Rogers 11.25.08 at 5:11 pm

Why was the band Great White not included as defendant?

5 Rich 11.25.08 at 5:17 pm

Because they don’t have money.

6 John Burgess 11.25.08 at 5:57 pm

PhilG: Damn right! And get off my lawn!!

7 Eric Turkewitz 11.25.08 at 7:01 pm

(and recall that the raison d’être of the Stella Liebeck suit was the false claim that only McDonald’s served beverages that were hot enough to cause third-degree burns

While it’s been awhile since I looked at the case, I don’t believe there was testimony that only McD served beverages that hot, but rather, that it was a negligent to do so. Big difference.

This is an interesting example of sandbagging; if defendants remove cases simply on the possibility that alleged damages will exceed the amount-in-controversy requirement, they may incorrectly remove cases that should remain in state court, but if they wait for the formal confirmation from the plaintiff, they may face the allegation that they’ve missed the 30-day window to remove a case–something to consider when plaintiffs’ attorneys complain that defendants reflexively remove cases to federal court that don’t belong there.

Nope, not sandbagging. In New York you are not permitted to state an amount of damages in the complaint.

8 David Wisniewski 11.25.08 at 8:40 pm

I’ve seen some bear-bones complaints in my travels, but this one is pretty close to barren. Is New York’s pleading requirement that loose?

9 Eric Turkewitz 11.25.08 at 9:54 pm

I’ve seen some bear-bones complaints in my travels, but this one is pretty close to barren.

A quick read of the Complaint, and it seems to have all the legal elements. Longer does not mean better. It says that Starbucks owned, operated and maintained the joint, that plaintiff was lawfully there and that Starbucks was negligent in a variety of ways and that plaintiff was injured. It even specifies many of the injuries, which many Complaints don’t do. You coud pick a nit and say that the Complaint doesn’t specifically allege any duty owed by Starbucks toward the plaintiff, but that is easily inferred and no judge would ever dismiss it on that ground.

Leaving aside the issue of whether the suit is good or not, I don’t really see what is missing from the Complaint with respect to the elements of stating a claim.

10 Steve 11.26.08 at 8:08 am

“Nope, not sandbagging. In New York you are not permitted to state an amount of damages in the complaint.”

So you mean legally sactioned sandbagging.

11 NYC J.D. 11.26.08 at 8:51 am

Plaintiff had better hope she gets this case remanded back to state court, if I’m correct in thinking that the “LAP” in the case caption refers to the SDNY’s Judge Preska. She has little tolerance for far-out tort theories, and as I recall has cited to Walter O.’s work in at least one case.

12 B.RAD 11.26.08 at 9:41 am

Just let every customer make their own drink at Starbucks and all this nonsense will stop.

13 Ted Frank 11.26.08 at 10:26 am

Given that the evidence of McDonald’s “negligence” was the false claim that it served beverages substantially hotter than its competitors (see any of the dozens of copies of ATLA’s propaganda about the case floating around the web), I stand by my characterization.

14 Todd Rogers 11.26.08 at 10:51 am

Just let every customer make their own drink at Starbucks and all this nonsense will stop. B.RAD, nothing personal, but how about:
Just let every customer:
light/make their own cigarettes
Load their own firearms
Buy/sell their own securities?

Where there is potential to sell the notion that a preventable injury occurred to a jury, there is potential for the forth branch of government to turn a profit.

15 Eric Turkewitz 11.26.08 at 11:01 am

Steve:

So you mean legally sactioned sandbagging.

Nope, wrong again. Sandbagging is an act of deception.

The legislature’s removal of the requirement to state an amount of damages in a complaint was something that both tort reformers and trial attorneys wanted. That’s because (from the defense side) the high numbers were often picked up by newspapers to say that Widgets Inc. was sued for a bazillion dollars. That headline was unfair.

From the other side, trial attorneys didn’t like it because, at the time suit was brought, it was often impossible to determine the extent of the injury, thereby inviting high numbers to protect the client. It was (and is, where the concept remains) a stupid guessing game.

The removal of the ad damnum clause was sound public policy.

Ted:

You said the raison d’être of the Stella Liebeck suit was the false claim that only McDonald’s served beverages…

I’m relatively certain, without having reviewed the record, that there was no testimony that “only” McD served coffee at that temp. For that would require a canvassing of every establishment that served coffee.

You have overstated the argument, effectively creating a straw man. Since you called this the raison d’être of the suit, that represents a significant error in characterization.

16 Ted Frank 11.26.08 at 1:39 pm

This is not a strawman. Defenders of the meritless Liebeck lawsuit have repeatedly falsely stated that “McDonald’s coffee was served much hotter (at least 20 degrees more so) than at other restaurants.”

17 Eric Turkewitz 11.26.08 at 2:16 pm

Ted:

Why would you quote what commentators said if you are claiming the raison d’être of the suit was that only McD served the coffee this hot? Because the commentators came in long after the suit was started. And the facts about how hot McD served their coffee likely came out in discovery, after suit was started.

What you need to defend your assertion that raison d’être of the suit was that only McD served the coffee this hot is the actual expert testimony. Not spin on the testimony, regardless of which side it comes from.

It seems to me that the raison d’être of the suit was that someone was badly burned and that McD was negligent in the way they served their coffee. I’m willing to bet, without looking up the suit again, that the hundreds of times that this happened to McD customers was discovered after suit was started.

I think you have exaggerated your arguments both by using the absolutist language “only” as well as claiming it to be the raison d’être.

18 Ted Frank 11.26.08 at 2:25 pm

Eric, you’re being disingenuous. Reformers contemporaneously criticized the Stella Liebeck verdict by noting that of course coffee is hot, and the suit was ridiculous. In response, ATLA manufactured a successful propaganda campaign defending the verdict on the fictional grounds that McDonald’s coffee was uniquely hot. The fact remains that ATLA lied, and it’s not remotely an exaggeration to point that out.

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