Those of you who have attended my “Law of McDonald’s” talks in California and Florida may recall the case of the strip search hoax. A Florida man who was unusually persuasive would call dozens of fast food restaurants until he could find someone who would believe he was with the police and who would disrobe employees (or themselves) at his instructions; though there have been other lawsuits seeking to blame the fast food restaurants for this, courts have generally thrown them out. One exception was the case of Ogborn v. McDonald’s, where two targets of the hoax successfully sued for millions. On Friday, the Kentucky Court of Appeals largely affirmed the lower court judgment, though it reduced the punitive damages received by Donna Summers (who gave an Alford guilty plea for her role in the strip search) from $1 million to $400,000. McDonald’s hasn’t yet decided whether to appeal to the Kentucky Supreme Court. (Andrew Wolfson, “Appeals court upholds $6.1 million strip-search verdict against McDonald’s”, Kentucky Courier-Journal, Nov. 20, via ABA Journal).
Tagged as:
criminals who sue,
deep pocket,
failure to warn,
Kentucky,
McDonald's,
personal responsibility,
punitive damages,
strip search hoax,
third party liability for crime,
workplace
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.)).
Tagged as:
failure to warn,
hot coffee,
New York,
procedure,
proximate cause,
Starbucks
This much seems to be agreed: Itzamargrid Ramos took her friend Clarissa Marino to scenic but hazardous Kaaterskill Falls in the Catskills as a surprise for her 20th birthday. The two were hiking when Marino slipped on a rock — her footwear at the time was “flat, rubber-soled slip-on shoes with no tread” — and fell into a stream from which it took ninety minutes to rescue her. She sued the state of New York for failure to warn, but just lost her case in the state Court of Claims, which hears cases against the state government.
The two friends are now described as estranged, which may put in perspective a noteworthy discrepancy between their respective testimony. Marino “said she was never blindfolded at any point during the day”, while Ramos “told the court Marino was blindfolded for the entire two-hour car ride and even as they traversed most of the trail until just before the top of the falls. … In the end, the court said it found Ramos’ version more credible and that the ‘profound danger posed by the Kaaterskill Falls was open and obvious to anyone employing the reasonable use of her senses.’” (Paul Nelson, “Court rules against fall victim”, Albany Times-Union, Sept. 7).
Tagged as:
failure to warn,
New York,
open and obvious,
recreation
Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).
Tagged as:
compulsive gambling,
failure to warn,
jackpot justice,
Mirapex,
overwarning,
pharmaceuticals,
preemption,
product liability,
punitive damages,
Supreme Court,
Ted Frank
I’m proud to be part of the amicus brief in Wyeth v. Levine filed by leading economists John E. Calfee, Ernst R. Berndt, Robert Hahn, Tomas Philipson, Paul H. Rubin, and W. Kip Viscusi. It provides an excellent explanation why FDA preemption is good for consumer safety and health policy, and why failure-to-warn litigation by trial lawyers hurts consumer safety. (You may notice that none of the public-policy arguments against preemption you see in the blogosphere fairly address these economic arguments.)
For everything you could possibly want to know about the Wyeth v. Levine case, do see Beck & Herrmann’s roundup of their excellent posts on the subject, and keep an eye out for their discussion of the top-side briefs undoubtedly coming soon.
Tagged as:
failure to warn,
overwarning,
preemption,
safety,
Supreme Court
One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,” 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).
Further evidence comes from a CNNMoney.com report (Aaron Smith, “Consumers tune out FDA warnings”, Feb. 25) suggesting that the FDA’s post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.
I discussed overwarning in other contexts on Overlawyered in Sep. 2006.
Tagged as:
failure to warn,
FDA,
overwarning,
pharmaceuticals,
product liability
For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it’s worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards’s self-serving version of the Valerie Lakey case. I correct this problem in today’s American:
Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.
Tagged as:
Barack Obama,
deep pocket,
failure to warn,
John Edwards,
politics,
pools,
Ted Frank
The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:
(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.
Moreover, the manual includes the following warnings:
(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.
Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).
Tagged as:
deep pocket,
failure to warn,
lawn mowers,
Pennsylvania,
product liability
Gruesome life-changing injuries from tug-of-war matches (e.g., Colorado, Oct. 12; North Carolina, 2003; Taiwan, 1997; Tennessee, 1995) are rare, but not unheard of. Safety measures on tug-of-war ropes are possible. Do everyday ropes, used for a variety of purposes other than tug-of-war, need warning labels? Do previous injuries put the Colorado school district on notice: i.e., does a single publicized injury now make every school district effectively strictly liable if future injuries occur? What happens when tug-warriors disregard safety rules because the obvious risk of wrapping rope around a body part is not clearly spelled out? (Keep in mind in the Stella Liebeck McDonald’s coffee case, the plaintiffs complained that the coffee-cup warning that the beverage was hot wasn’t clear enough about the risk of injury.)
Tagged as:
Colorado,
failure to warn,
North Carolina,
product liability,
Tennessee
Slate’s Emily Bazelon doesn’t read the owners’ manual for her car, does something the owners’ manual explicitly says not to do—recline a seat in a moving car—and hurts herself. Bazelon blames… the automaker and NHTSA for not doing more to warn her, and serves as a mouthpiece for plaintiffs’ lawyers who specialize in such arguments, lionizing one who won a $59 million verdict against Toyota for his client’s own foolhardiness.
The NHTSA official Bazelon talks to points out that she’s taking one safety issue out of context; Bazelon pooh-poohs it because, after all, it happened to her and some other people, too! But Bazelon ignores that there are several dozen other dangerous problems addressed in the owners’ manual, many of which would kill or injure far more passengers than reclined drivers’ seats. One cannot just look at the idea of putting a single additional sticker on the dashboard: the car would have to be literally wallpapered with additional warnings to cover every warning of a matter at least as hazardous as car-seat reclining, at which point we’re back to the problem of owners ignoring warnings. Bazelon simply fails to address this reality.
But, hey, I’ll join Bazelon in telling you: don’t recline your car seat in a moving vehicle. (Long-time Overlawyered readers already know this from two separate posts.) Also, don’t drive with your windows open, your doors unlocked, or your seatbelt unfastened. Reattach your gas cap after filling the tank. Look behind you and ensure the path is clear before going in reverse. Keep your eyes on the road. Don’t pass a car in a no-pass zone or drive twice the speed-limit. Sit up straight, especially in a front seat with airbags. Don’t have loose heavy objects (including unbelted passengers) in the passenger compartment of the car. Don’t permit children to play with power windows; don’t leave children unattended in a car that is on; don’t leave the car on when you’re not in it; don’t try to jump into a moving vehicle. Don’t leave your shoes loose while driving. Be careful when shifting gears. Do not violently swerve an SUV, especially if there are unbelted passengers. Always be aware of the danger of pedal misapplication. Don’t fall asleep while driving. Don’t drive recklessly, and if you do, don’t leave the road. Use your parking brake when you park. Replace a tire after repeatedly patching it; don’t drive on bald tires in the rain; and replace your ten-year old tires before you have to drive on a spare. Make sure your floor mat isn’t interfering with the pedals. Don’t drive into the back of a truck at 60 mph without braking. Et cetera.
(And welcome, Instapundit readers. Check out our vast selection of automobile and personal responsibility articles.)
Tagged as:
autos,
Chrysler,
Emily Bazelon,
failure to warn,
overwarning,
personal responsibility,
Toyota,
wacky warnings
- Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
- Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
- US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
- Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
- KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
- McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]
Tagged as:
acrylamide,
Beaumont,
Bill Lockyer,
Brent Coon,
Buell-Wilson v. Ford,
copyright,
Extreme Makeover,
failure to warn,
Ford Motor,
French fries,
Google,
hot coffee,
Jerry Brown,
McDonald's,
punitive damages,
roundups,
trans-fats
David Rossmiller blogs:
My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: “I can see someone doing that!” Personally I’ve seen folks do much more ridiculous things many times.
The issue is whether people doing “ridiculous things” should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.
Such overwarnings have real social costs: as numerous studies have documented, if one’s personal watercraft manual says “Never use a lit match or open flame to check fuel level,” one’s going to be less likely to slog through the whole thing and find the warnings that aren’t so obvious. In many cases, the “failure-to-warn” is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus “hiding” its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level—and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.
The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a “Do not iron” warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases—such as the McDonald’s coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn’t “big enough” to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds—aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.
Tagged as:
deep pocket,
failure to warn,
product liability,
wacky warnings
McDonald’s week continues on Overlawyered (Sep. 22; Sep. 20). McDonald’s is being sued over a trend of strip search hoaxes we discussed two years ago.
Here, a caller from a payphone in Florida tricked a Hinesville, Georgia, McDonald’s male manager and 55-year-old male employee into strip searching and molesting a 19-year-old female employee, who put up with the telephone-instructed molestation for thirty minutes before putting an end to matters. The franchise immediately fired the two men three days after the February 2003 incident, and offered the female victim counseling and a new job, but she instead quit and sued the franchise and McDonald’s. McDonald’s did warn the franchise (and other franchises) about the hoax in 1999 and 2001, (and the McDonald’s training manual now explicitly rules out strip searches of employees rather than relying on common sense) but such warnings are, of course, evidence that they should have warned more, according to the plaintiffs. The district court threw out the suit against McDonald’s, and many of the claims against the franchisee.
The defendants’ attorneys apparently have little faith that the law will have the common sense the employees lacked and blame the appropriately responsible parties rather than the deep pockets: to avoid liability they are buying into the plaintiff’s theories and seeking to blame each other in September 15 arguments before the Eleventh Circuit on interlocutory appeal. Some more aggressive defense might have had an effect: “The whole thing is really stupid,” said Senior Judge Peter Fay. (Alyson M. Palmer, “Bizarre ‘Strip-Search Hoax’ Case Before 11th Circuit”, Fulton County Daily Report, Sep. 25).
[click to continue…]
Tagged as:
deep pocket,
failure to warn,
Kentucky,
McDonald's,
personal responsibility,
strip search hoax,
third party liability for crime
