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What the press coverage to date has not mentioned is that the person who almost certainly perpetrated the incident was acquitted after the Kentucky case fell apart because the criminal defense attorney was able to impeach the witnesses by noting their financial stakes in the civil litigation decided today. Thus, thanks to our civil litigation system’s quest for the deep pocket, the guilty party went free and a tertiary innocent victim got hit with damages. Which is precisely why it’s a misnomer when trial lawyers rename themselves associations for “justice.”

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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).

Anticipating arguments for the plaintiff that anti-reformers might make:

1. That a dozen (or even a few dozen) people have fallen for the scam in the past shouldn’t create a duty for the restaurant. We’re only hearing about the telephone calls that succeeded, and we don’t know how many managers hung up on the prank caller.

2. Every failure-to-warn case is second-guessing with 20/20 hindsight. Any given warning could always be made stronger: print it in bolder text, or with a larger font-size, or in bright red. And if a corporation does shout every warning from the rooftops, as Merck did in the Vioxx cases, you can do what the plaintiffs are doing in the Vioxx cases: complain that the defendant warned about so many different things, that they “buried” the important warning, and thus failed to warn that way. Overwarning is a real danger: when one buys a new car, it invariably comes with a 300-page manual with a warning or two on every page. Do you know what each of those warnings are? I’ve had my Prius for 33 months and I sure don’t, and I’ve litigated failure-to-warn cases. Because plaintiffs’ lawyers have forced the manufacturer to include every idiot-proof possibility in the manual, I end up less warned because I don’t spend the time trying to sift the obvious from the non-obvious warnings.

3. At the end of the day, there are four responsible parties: the malicious phoner, and the three people in the restaurant who didn’t use common sense. (The minute the plaintiff withdrew consent, the strip search stopped; the males acted inappropriately and stupidly, but not criminally.) The liability system, however, gives the incentive to seek blame in the deepest pocket, whether or not that party is the most culpable or even, if one buys into this theory of tort law, the cheapest cost avoider. The adversarial legal system ceases to be a quest for the truth, and turns into a game-show of whether the attorneys can trick a judge and jury into blaming the wealthy bystander. It doesn’t have to be that way: once upon a time, rules required a defendant to be the proximate cause of the harm, and cut cases like this off at the knees. It’s ironic that reformers are being accused of “deforming” the system, when it’s the plaintiffs’ bar that caused the original deformation, while reformers are seeking rules that restore common sense to the law.

Update: Here’s a comprehensive October 9, 2005 Louisville Courier-Journal article on the hoax, which apparently was the work of a single Florida man; since his arrest, the prank calls have stopped. Plaintiffs in a Kentucky suit are complaining that McDonald’s was too slow to implement a proposed plan to add a sticker to every McDonald’s phone warning managers of the hoax. Check the comments for more details.

Update, Oct. 5: affirmed.

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