In an op-ed in the Examiner last week, I express curiosity why the trial bar continues to insist that the infamous McDonald’s coffee case came out correctly decided, to the point that trial lawyer blogs express excitement that a documentary is going to be made about the subject. Of course, if the movie just parrots the urban legends trial lawyers have spread about the case, that would be something else—the fact that the filmmaker was fundraising at the AAJ convention but hasn’t shown her face around any of the tort reform conventions suggests a certain direction about the film.
Speaking of McDonald’s, I’ll be in the Bay Area next week at a couple of law schools giving a presentation called “The Law of McDonald’s: Hot Coffee, Obesity, and Prank Phone Calls” : Golden Gate University Law School on September 10, and UC-Davis on September 11. I’ll also be at UC-Berkeley Law on September 8, and Santa Clara University Law on September 9 talking more generally about tort reform and patent reform specifically.
Tagged as:
AAJ,
hot coffee,
McDonald's,
Stella Liebeck,
Ted Frank,
urban legends about lawsuits
Pulitzer-prize winning columnist Leonard Pitts Jr.:
Anna from Estonia mak[es] it a point to show visiting friends a sight they could never see in the old country. They laugh, they point, they whip out cameras and take pictures. Of the Everglades? No. Of Mount Rushmore or Lady Liberty? No.
Anna said they take pictures of the idiot signs. These she said, crack her friends up. “Caution: Coffee is hot.” Apparently, elsewhere in the world, you don’t need a sign to know this.
More on the deservedly infamous McDonald’s coffee case. Similar discussion: March 2.
Tagged as:
Dallas,
hot coffee,
McDonald's,
personal responsibility,
Stella Liebeck,
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
Add the Stony Brook University Hospital cafeteria to the list of servers unsuccessfully sued over burns caused by hot coffee. If you recall, the theory of the McDonald’s coffee case (and repeated by such trial lawyer defenders as congressional candidate Bruce Braley) was that McDonald’s, and only McDonald’s, served coffee so hot as to burn. For some reason, the reporter for the New York Law Journal tries to leave the reader with the impression that the original Stella Liebeck case was justifiable (though that opinion is irrelevant to the article itself) which shows how successful trial lawyer propaganda has been within the legal community and press. (John Caher, “N.Y. Judge Cool to Injury Claims Over Spilled Coffee”, New York Law Journal, Nov. 2). We earlier listed other hot coffee lawsuit defendants.
Speaking of which, you may recall the Russian McDonald’s coffee case litigation that we covered a year ago, with identical allegations from a woman who spilled coffee on herself; the press is reporting that the plaintiff has dropped her case. As in the Stella Liebeck case, the Russian McDonald’s had a warning on the coffee cup that the contents were hot. (”Moscow McDonald’s coffee-spill case closed”, RIA Novosti, 1 Nov.).
Tagged as:
hospitals,
hot coffee,
McDonald's,
Russia,
Stella Liebeck
If you can stand one more post about the McDonald’s coffee case, this 2002 opinion in the High Court of Justice, Queens Bench Division, is extraordinarily sensible. Most notably, coffee served at 65 C (a mere 150 degrees Fahrenheit), will cause a full-thickness burn in 2 seconds, so the court rejected the claim that McDonald’s could have avoided injury by serving not-so-hot coffee, refuting the claims regularly made by the plaintiffs’ bar that a few degrees’ difference could have avoided injury. (Bogle v. McDonald’s Restaurants Ltd., Neutral Citation [2002] EWHC 490 (QB), Case No: HQ0005713.)
Tagged as:
hot coffee,
McDonald's,
Stella Liebeck,
United Kingdom
I suppose Evan Schaeffer pointed to this post by a USD 1L who is being incorrectly taught that the McDonald’s coffee lawsuit isn’t frivolous to get my goat, but I just find it very, very sad that a generation of law students is being taught to twist the tort system improperly. Of course, if someone googles “McDonald’s coffee lawsuit”, nine out of the top ten links will be happy to share with them the ATLA fictions about the lawsuit; it’s only a matter of time that the trial lawyer wikiality replaces the truth.
Tagged as:
hot coffee,
McDonald's
The McDonald’s coffee case came up in a comment-board discussion of the MySpace suit on the WSJ Law Blog, and, as is common thanks to a tremendously successful propaganda campaign by the plaintiffs’ bar, a law student popped up to “debunk” the story. He justified the ludicrous award by arguing that the coffee was so hot to “melt the plaintiff’s pantyhose to her skin.” Well, that is rather hot coffee, if true, since the melting point of nylon is hundreds of degrees higher than the boiling point for coffee, so I would have no problem holding McDonald’s liable if they were selling coffee at a temperature where it ceases to be liquid or solid.
Of course, it’s not true that the coffee was so hot to melt pantyhose (and Stella Liebeck was wearing cotton sweatpants), but one looks forward to Jonathan Turley decrying this urban legend that’s distorting the debate over legal reform.
Tagged as:
hot coffee,
McDonald's
Several comments on yesterday’s post merit responses.
1. One commenter invokes the Ford Pinto case, which is interesting because that’s perhaps the most famous anti-reform urban legend of all. He mistakenly says that Ford’s problem there was undervaluing human life (though the figure in the memo merely repeated the NHTSA number), but, in reality, the plaintiffs sought and obtained punitive damages because Ford performed a cost-benefit calculation at all. Any manufacturer caught performing the cost-benefit calculation that the commenter believes reflects the tort system operating at its most efficient is going to be accused of “putting profits before people” and undervaluing human life, and is at severe risk of being hit with punitive damages unless the judge or jury is unusually economically literate.
2. I’m not saying the court should have thrown the case out because of the factual dispute. The jury made the wrong decision on the facts, but the judge made the wrong decision on the law: see McMahon v. Bunn-O-Matic and the dozen or so cases throwing identical theories out.
3. I agree that it’s not enough to look solely at the costs of the tort system, and that one must look at the benefits also. I don’t oppose the tort system as a whole, but there are certainly problems with the tort system that can be improved to increase the benefits while decreasing the costs. The McDonald’s case illustrates several of these problems: (a) bogus expert testimony; (b) the distorting effect of punitive damages, especially when punitive damages in a products liability case is based on the defendants’ sales, rather than the defendants’ conduct; (c) the erosion of the concept of proximate cause from the tort system; and (d) the erosion of the concept of personal responsibility from the tort system; (e) the backwards-looking “failure to warn” cause of action; (f) the system’s unscientific rejection of concepts of statistical significance.
This would be bad enough if the case was simply an outlier, a case where bad luck, a bad judge, a bad jury, and defense mistakes combined to create a wrong result, but ATLA and law professors are holding up this case as a good result, and there’s a generation of law students who mistakenly think that this is what the tort system should aspire to.
4. I mentioned Snopes.com in the post; they appear to have taken down their original McDonald’s coffee page. I’ve changed the link from the main Snopes page to a different post discussing the “Stella Awards” (which we debunked August 27, 2001). There, Snopes.com repeats the claim that the McDonald’s coffee lawsuit was legitimate, and furthers the urban legend that there’s a sinister force behind the Stella Awards—a curious claim, given that the Mikkelsons’ experience with urban legends has surely taught them that no right-wing conspiracy is needed to result in the spreading of a good yarn that isn’t true. (See also Aug. 14.) In contrast, ATLA affirmatively promotes urban legends about the Ford Pinto and McDonald’s coffee case on their page.
5. Side note about an irony of the Ford Pinto case: the litigation was sold to the American public as a godsend because Pintos were so dangerous that their gas tanks killed a thousand or more. Gary Schwartz added up the numbers, and discovered that only 28 people died in Ford Pinto fuel-fed fires—a rate lower than many other small cars. ATLA shamelessly uses the new number to exclaim that current product manufacturing snafus are “worse than the infamous Ford Pinto,” which is, of course, infamous only because of the successful propaganda of the trial bar.
Tagged as:
failure to warn,
Ford Pinto,
hot coffee,
McDonald's,
personal responsibility,
punitive damages,
Snopes
Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.
The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).
Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.
But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.
[click to continue…]
Tagged as:
AAJ,
deep pocket,
failure to warn,
hot coffee,
McDonald's,
New Mexico,
open and obvious,
punitive damages,
Snopes,
Stella Liebeck
One of the great urban legends perpetuated by the trial bar is that the ludicrous McDonald’s coffee case (Dec. 10, 2003; Aug. 3, 2004; Aug. 4, 2004, etc.) was somehow worthwhile because McDonald’s “lowered the temperature of its coffee” after it lost the case over Stella Liebeck’s burns. This claim is repeated by hundreds and perhaps thousands of web pages, and at least one tort-law casebook used in law schools.
Not so. Restaurants, much to the relief of consumers, continue to serve coffee hotter than the 140 degrees Stella Liebeck’s attorney thought should be the maximum limit. And, one time in several million, a customer is burnt by the coffee, and some fraction of those result in lawsuits. Latest examples: Rachel Wehrenberg of Florida is suing William F. Ganshirt and McDonald’s for second-degree burns suffered by her daughter when Ganshirt spilled his coffee on six-year-old Victoria’s back after the two collided; and Russian Olga Kuznetsova is suing McDonald’s for second-degree burns she suffered when she spilled coffee on herself while trying to exit the restaurant. The Naples News uncritically repeats attorney Debi Chalik’s false assertion that “industry standard” is “140 degrees.” The Russian lawsuit is over whether the restaurant’s door caused the spill; there does not appear to be a claim that the coffee was unreasonably hot just because it caused burns. Interestingly, there appear to be delays in the Russian case because the expert witness was found to have had contact with the plaintiff’s attorney, a common practice here that is an apparent nyet-nyet in Russia. (Kristen Zambo, “Mother sues McDonald’s claiming coffee burned daughter”, Bonita Daily News, Aug. 6; “Russian woman claims million for a cup of McDonald’s coffee”, Pravda (English), Aug. 9; Andrey Kolesnikov, “Not Fraud, Just Clumsiness”, Kommersant, Jul. 28).
Tagged as:
expert witnesses,
hot coffee,
McDonald's,
Stella Liebeck
“The fashion to sue fast food enterprises has reached Russia. Thirty-seven-year-old Muscovite Olga Kuznetsova claimed a 100,000 ruble ($3,500) compensation from McDonald’s for the burn that a spilled cup of coffee had left on her body.” (Pravda, Nov. 15; Novosti, Nov. 12). For Ted’s take on the much-discussed Stella Liebeck case, see Dec. 10, 2003, Aug. 3, 2004, and Aug. 4, 2004.
Tagged as:
hot coffee,
McDonald's,
Russia
More discussion of the McDonald’s coffee case, the blogosphere discussion of it, and why it’s relevant today on our sister blog, Point of Law (Aug. 4).
One additional point merits discussion: “PG” of Blog de Novo (Aug. 3) makes the oft-heard argument that it was alright for Stella Liebeck to sue McDonald’s for millions because she first tried to settle for her medical expenses. I recently had an experience that shows why this thinking is fallacious.
[click to continue…]
Tagged as:
failure to warn,
hot coffee,
McDonald's,
product liability,
Stella Liebeck
A sad example of how the Democratic party has become the political wing of the plaintiffs’ bar is a recent post in the Daily Kos defending John Edwards by lionizing the result in the infamous McDonald’s coffee case, where a jury awarded Stella Liebeck $2.9 million for spilling a 49-cent coffee on herself. (Daily Kos, Aug. 1). Professor Bainbridge refutes (Aug. 1), with reference to our Dec. 10 entry. Blogger “Curmudgeonly Clerk” (Aug. 2) continues to insist that hot coffee is unreasonably dangerous, which sidesteps the question why our legislatures continue to permit it to be sold. Strangely, the Clerk is aware of and cites McMahon v. Bunn-O-Matic, a Seventh Circuit case that should’ve ended the coffee debates once and for all, but doesn’t reconcile that decision with his defense of the Liebeck case.
Meanwhile, Maxine Villegas’s sister spilled McDonald’s coffee on her, and she’s hired Liebeck’s lawyer to sue McDonald’s. (Matt Fleischer-Black, “One Lump or Two?”, American Lawyer, Jun. 4.) Though scheduled to go to trial last month, there hasn’t been additional press coverage.
Tagged as:
hot coffee,
McDonald's,
Stella Liebeck
Professor Bernstein (also here) and the “Curmudgeonly Clerk” trade thoughts on the infamous McDonald’s coffee case ($2.9 million verdict for Ms. Stella Liebeck, who spilled a 49-cent coffee on herself), with the Curmudgeonly Clerk’s comments demonstrating how thoroughly the plaintiffs’ bar has infiltrated societal thinking.
The Clerk justifies the verdict on a couple of grounds: McDonald’s had 700 previous complaints; and Ms. Liebeck suffered horrific injuries.
To say that there were 700 previous complaints of burns (ranging from scalds to real injuries) from McDonald’s coffee begs the question. After all, 700 is just the numerator. What’s the denominator? The answer is in the tens of billions. A product that hurts one in twenty-four million people is not “unreasonably dangerous”, especially when the vast majority of the 700 incidents were not the sort of grievous injuries Ms. Liebeck had. (McDonald’s had settled previous cases, but the cases were incidents where the McDonald’s employees had spilled the coffee.) However, the jury took the 1-in-24 million statistic not as evidence that McDonald’s coffee was not dangerous, but as evidence that McDonald’s cared more about statistics than people — when in fact the statistic should have been used to throw the case out.
That Ms. Liebeck was surely serious hurt doesn’t change the underlying problem with the lawsuit: Ms. Liebeck was hurt because she spilled coffee on herself. If (as all fast-food restaurants do now) McDonald’s had the obvious statement “Coffee is hot and can burn you” on the cup (a juror later complained that McDonald’s warning was too small), would that have prevented her injuries? True: McDonald’s could have served luke-warm coffee or even iced coffee. But at the end of the day, the proximate cause of Ms. Liebeck’s injuries, as awful as they were, was Ms. Liebeck.
The argument for liability is that McDonald’s chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here’s a question: the reason Ms. Liebeck’s injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck’s sweatpants had been made out of Gore-Tex or some other liquid-resistant material, she never would have been hurt. What’s the principle of tort law that holds McDonald’s liable, but not the clothing manufacturer?
[click to continue…]
Tagged as:
failure to warn,
hot coffee,
McDonald's,
open and obvious,
personal responsibility,
Stella Liebeck
