We reported on the absurd case Sep. 24. The opinion was a two-paragraph unpublished per curiam affirmance. (Alyson M. Palmer, Fulton County Daily Report, Oct. 5).
Posts Tagged ‘McDonald’s’
Paul Harris show, KMOX
I was a guest this afternoon on Paul Harris’s radio show on KMOX, St. Louis. We discussed Judge Weinstein’s ruling certifying a national class action over “light” tobacco claims (see PoL Sept. 25), the court decision last week keeping alive the Pelman obesity case against McDonald’s (Sept. 22), and a deaf group’s lawsuit demanding captioning at Washington Redskins football games (Sept. 21). You can listen here — it’s practically a podcast.
Deep pocket files: Plaintiff: McDonald’s should’ve warned me and my boss not to be gullible
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).
Pelman v. McDonald’s going forward
The infamous class action litigation seeking to blame McDonald’s for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, “N.Y. Judge Rebuffs McDonald’s Motion to Dismiss Deceptive Ad Claims”, New York Law Journal, Sep. 22). Judge Sweet’s opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald’s can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald’s if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.
Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as “pure hype” because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It’s a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.
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.)
McDonald’s coffee lawsuit and 1Ls
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.
“A Taxonomy of Obesity Litigation”
A Little Rock friend of mine had an emergency gap in his law review, and solicited me to write about the fast-food litigation. I’m not a big fan of the eight-footnotes-a-page-style that law reviews like, but I think the piece is a good overview of what has happened to date. The article, 28 UALR L. Rev. 427 (2006), can be downloaded at SSRN (help me catch up with Bainbridge!) or at the AEI Liability Project website. (cross-posted at Point of Law)
I worry that events have outstripped me; one sentence in the article, “Why is selling soda [to 17-year-olds] an attractive nuisance, but selling … Internet connectivity is not?” predates the MySpace litigation.
Another McDonald’s coffee urban legend
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.
New Class Action Against McDonalds
On Friday, a new class action lawsuit was filed against McDonald’s for not fully disclosing the presence of dairy products and wheat glutens in their french fries. The suit was prompted by McDonald’s admission two days earlier that their fries do include milk and wheat, at least in small amounts. The suit does not appear to list any specific instances of people being harmed by trace milk and wheat in french fries, though a separate suit filed in Miami by the parents of a 5-year old girl alleged the fries caused their daughter to get very ill (though according to the article the parents continued to feed the girl McDonalds fries for two years).
Responses to comments on yesterday’s McDonald’s coffee posts
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.