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Stella Liebeck

Food roundup

by Walter Olson on November 26, 2013

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  • “The FDA’s Ill-Conceived Proposal to Ban Trans Fats” [Baylen Linnekin] Margarine and other butterfat substitutes help in keeping a meal kosher, but FDA appears indifferent to individual preference [Ira Stoll] Can the baker fudge the formula for Baltimore’s Berger cookies? [Baltimore Sun, WTOP/Capital] Organized grocery lobby appears to be going quietly, perhaps a misguided strategy since this sets a precedent for yanking familiar ingredients off Generally Recognized As Safe (GRAS) list, and many activists would like to move on to things like sugar next [Bloomberg Business Week, Doug Mataconis/Outside the Beltway, Michelle Minton/CEI, Bainbridge] Switch to palm oil might accelerate deforestation [Scientific American]
  • FDA’s regs implementing Food Safety Modernization Act could tank small farmers and other food operations, commenters write in by thousands [Baylen Linnekin, Jim Slama, HuffPo]
  • Proposed Austin curbs on fast food restaurants might ensnare its beloved food trucks [Linnekin]
  • Any day now FDA could issue long-awaited, highly burdensome new menu calorie labeling regs [Hinkle] Sens. Roy Blunt (R-MO) and Angus King (Ind.-ME) introduce bill to excuse grocers and convenience stories from rules and simplify compliance for pizzerias [Andrew Ramonas/BLT]
  • “Panel weighs in on soda ban at law school” [NYU News covers my recent panel discussion there with Jacob Sullum and Prof. Roderick Hills, pic courtesy @vincentchauvet]
  • “Organic Farmers Bash FDA Restrictions On Manure Use” [NPR via Ira Stoll]
  • Nick Farr looks at NYT retrospective on the Stella Liebeck (McDonald’s) hot coffee case [Abnormal Use]
  • “Sugar is the most destructive force in the universe” according to expert witness who meets with less than favorable reception in corn syrup case [Glenn Lammi, WLF]

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Liability and torts roundup

by Walter Olson on October 24, 2013

  • Struggling with a new-design gas can? There’s a reason for that [Scott Reeder, earlier on Blitz bankruptcy]
  • NYT video retrospective on Stella Liebeck-McDonald’s (hot coffee spill) case is getting a lot of attention;
  • Warren Buffett’s Berkshire Hathaway has made itself the biggest name in asbestos defense, and some trial lawyers hope to make hay with that [Scripps/WPTV]
  • California trial lawyers chief: yes, we’re going to partner up more with elected officials as in lead paint case [Chamber-backed Legal NewsLine]
  • It’s differences in procedure, more than in substantive law, that mostly explain why the U.S. has hundreds of times as many product liability suits as Japan [J. Mark Ramseyer via Point of Law]
  • “Injured by big government? Call: 717-671-1901 [promotion for Commonwealth Foundation, a Pennsylvania free-market-oriented outfit]
  • How litigation finance might remake the lawsuit landscape [Nora Freeman Engstrom via TortsProf]

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Having been at times lacking in enthusiasm for the work of journalist Stephanie Mencimer, it’s only fair we credit her again with considerable courage for returning to the failed Jamie Leigh Jones case in a new article in Washington Monthly. (Jones alleged a brutal rape in Iraq for which her lawyers said employer Halliburton/Kellogg Brown & Root (KBR) should have been held responsible; the case served as a springboard for numerous misleading attacks on pre-dispute arbitration). Following the evidence wherever it leads against the likely inclinations of many Washington Monthly readers, Mencimer leaves Jones’ credibility in tatters and the various liberal and trial-lawyer sources that ballyhooed her case — including Sen. Al Franken (D-Minn.) and TV talker Rachel Maddow — looking highly gullible, to go with the kindest interpretation.

Most damning of all, as readers of posts in this space (especially those by Ted Frank) will recall, Jones was given center stage in Susan Saladoff’s film “Hot Coffee,” which periodically airs on HBO and on college campuses and has established itself as one of the litigation industry’s most durable and successful propaganda vehicles. All future discussion of “Hot Coffee” — and certainly any cable/broadcast airings or public screenings whose sponsors care about accuracy and fairness — will need to warn audiences that the Jones case can now be seen in retrospect as almost unrecognizably different from the picture of it presented in that trial-lawyer-produced “documentary.” If this is what becomes of one of Saladoff’s central cases, how reliable ought we to consider the rest of her film?

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Great review by Miami Herald TV critic Glenn Garvin casting a skeptical eye on the trial-lawyer film project (“done in by its essential dishonesty… like any good lawyer — and unlike any good documentarian — [director Susan Saladoff is] intent on concealing the weakness in her case).” Read it here. Meanwhile, from the “How does this sort of thing get past the editors of the Washington Post?” files, there’s this from Hank Stuever:

For to really embrace tort reform, you have to be willing to treat all potential plaintiffs as no-good grifters. … To support tort reform, you have to believe all lawsuits against businesses are a threat to the free market.

Stuever does not, for some reason, name any proponent of reform who has actually asserted either of the propositions. Do you think that might be because he’s trafficking in absurd caricatures? (earlier on “Hot Coffee” here, here, here, etc.)

P.S. More: Cory Andrews, WLF. And if lawyers are really eager to have the facts of the Liebeck v. McDonald’s case come out, it’s curious they don’t take steps to release the trial transcript, in the absence of which critics of the case are obliged to speculate on key points. And as I just wrote in a comment at Abnormal Use:

I believe organized tort reform groups were caught flat-footed by the McDonald’s case and didn’t get around to doing much with it until it had already become the talk of the nation through talk shows, late night TV and so forth. As often happens, plaintiff’s-side advocacy groups were more aggressive in seeking coverage for their side in the media. Thus Public Citizen and allies gave a press conference on Capitol Hill and were rewarded with a big Newsweek story summarizing their talking points (as well as, earlier, coverage in the news-side WSJ). I’m pretty sure no groups critical of the Liebeck award ever did a comparable press push; and the McDonald’s company itself, so far as I know, never chose to cooperate with commentators who might be sympathetic to its legal case.

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February 13 roundup

by Walter Olson on February 13, 2011

At Abnormal Use, Nick Farr brings some scrutiny to what’s looking like the big trial-bar media venture of the season.

P.S. And a follow-up that really stands on its own as a resource: “The Stella Liebeck McDonald’s Hot Coffee Case FAQ

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As a connoisseur of hot-coffee cases, I’m always excited to see a court get one right. The Abnormal Use blog points us to Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010). The plaintiff made the usual gamut of “design defect” and “failure to warn” claims, but the court wasn’t buying it. Note that the plaintiff claimed to be injured by the coffee at Sonic Restaurants, yet another refutation of the trial-lawyer claim that Stella Liebeck’s McDonald’s coffee was unusually hot.

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“Hot coffee is back!”

by Ted Frank on September 4, 2009

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.

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Updating our August 2006 post on Alice Griffin v. Starbucks: Griffin alleged that a Starbucks barista spilled hot coffee–195 to 205 degrees–on her, causing second-degree burns on her foot and permanent nerve damage when it scalded her through her pantyhose. A jury agreed and awarded $301,000. The court reduced the award to $201,000, and both sides appealed. On appeal, the New York Appellate Division reduced damages further to $76,000. (Griffin v. Starbucks Corp. (N.Y.A.D. Jun. 5, 2008); Matthew Nestel and Dareh Gregorian, “Gal’s Star’Bucks’ Cut”, NY Post, Jun. 7). New York has tort reform giving judges extra discretion to reduce damages through remittitur.

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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.

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.).

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Remember that the reason anti-reformers justify Stella Liebeck’s infamous hot coffee lawsuit against McDonald’s is because McDonald’s was allegedly the only one selling coffee hot enough to burn? The family of a Dallas Cowboys coach has hired an attorney to sue McDonald’s over allegedly tainted food. Here’s how Jeff Carlton of the AP describes him:

Cecil W. Casterline, the Haley’s lawyer, has previously sued Whataburger and Wendy’s on behalf of clients allegedly scalded by coffee.

Earlier: Starbucks; Burger King; Dunkin’ Donuts; Starbucks; Starbucks; an Indiana gas station and coffeemaker manufacturer; and McDonald’s again and again. (Update: also Stony Brook University Hospital cafeteria, and Starbucks again.) All hot coffee burns. That’s why even small children know not to spill it on themselves, and why most courts hold it’s not actionable when one spills hot coffee on oneself.

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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.)

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(Bumping from August 16, 2:30 pm upon update.)

I’ve been invoked. Some observations about the New York case of Alice Griffin v. Starbucks:

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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.

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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).

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.

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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.

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