Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Stella Liebeck’

“Hot coffee is back!”

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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Update: Alice Griffin v. Starbucks

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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Overlawyering making America a laughingstock

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.

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Two more hot coffee lawsuit data points

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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Latest hot coffee lawsuit data points

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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British hot coffee: Bogle v. McDonald’s

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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Urban legends and Stella Liebeck and the McDonald’s coffee case

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.

Read On…

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McDonald’s coffee revisited, August 2005 edition

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).

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Stella Liebeck and McDonald’s coffee revisited II

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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