What If Liebeck v. McDonald’s Was Just Another Case? – Thoughts From A Plaintiff’s Attorney

[EDITOR’S NOTE: In an effort to bring you a different perspective on the infamous Stella Liebeck McDonald’s hot coffee case, we have asked Plaintiff’s attorney and award winning blogger Max Kennerly to contribute a guest editorial to Abnormal Use as we observe this week’s twentieth anniversary of the Liebeck trial. We here at Abnormal Use, as defense lawyers, view the case a bit differently than Max. However, that’s one of the reasons why we invited him to contribute a piece this week. We thank him for his time and willingness to participate in this project. Without further ado, you can find his post below. – JMD]

Medical malpractice has killed more Americans in the past week than Ebola has killed worldwide since the first recorded outbreak in 1976. Two months ago, a Wal-Mart truck driver who had been awake for 25 hours, as permitted by company policy, plowed into a van full of comedians. But when it comes to tort law, those issues stand in the long shadow of a 49-cent cup of coffee served a week after Wayne’s World hit theaters.

It shouldn’t be that way, but it is, and so there is use in continued legal anthropology of the Liebeck v. McDonald’s case. That said, I’m not going to make another argument for the damage that misunderstandings about the Stella Liebeck case have done to the civil justice system. Go watch “Hot Coffee” or read Priceonomics. Instead, I’m going to review the case as if it was just another personal injury case.

With that in mind, let’s first discuss how the case likely looked to the plaintiff’s lawyers when they initially filed it.

Trial lawyers sometimes classify the damages of cases as trivial, minor, severe, catastrophic, or death. “Trivial” cases involve fleeting emotional harm, like bugs in food and rude doctors. “Minor” cases involve soft tissue injuries and hairline fractures that heal. “Severe” cases involve major breaks of bones, lacerations, significant losses of blood, and some burns.

Stella’s third-degree burns over 6 percent of her body would make her case at least “severe.” Keep that in mind as we go forward.

Plaintiff’s lawyers routinely see cases in which a hot water device fails and burns someone. Just this year, I saw a case where the water heater at a motel malfunctioned, producing over 200° water and an instant burn when a child turned on their room sink, and I saw a case where a professional coffee machine kept re-boiling the hot water, producing a blast of scalding steam when an employee tried to change the brew basket.

Stella’s burns are far worse than what you would expect from spilled coffee; they’re more like burns from frying oil. If I saw her file come into our firm, I wouldn’t assume I was going to challenge McDonald’s nationwide coffee-making process. Rather, I would assume that either the restaurant had a broken coffee maker or that an employee had messed up the setting.

Is there an element of comparative fault to the case? Sure, but Stella – a sweet, credible grandmother – didn’t do anything wildly unreasonable. She didn’t put the coffee to an “abnormal use.” She put the cup between her legs, which was, and is, common. Negligent? Maybe, and her recovery could be reduced accordingly.

Then there’s another factor that likely contributed to Stella’s decision to find a lawyer and the lawyer’s decision to take the case: McDonald’s acted like complete jerks. When one of your customers is severely injured by your product, and all they want is compensation for medical expenses and lost income, you should talk to them. Yet, McDonald’s treated her case as trivial, the way they would treat a bug-in-the-hamburger case, offering her $800. That’s the type of “from good hands to boxing gloves” treatment that is the epitome of social injustice: a corporation refusing to pay its dues because it knows the injured consumer lacks the will and the resources to fight. But Stella and her lawyer did fight.

Now, let’s look at the case post-verdict, as we would any other personal injury trial. At core, the case boils down to – pardon the pun – one purely factual question and one mixed legal–factual question.

The purely factual question is: how hot do you think the coffee was?

This isn’t exactly brain surgery. Like jurors, we should take in what the experts at trial said, but the experts differed by 50°! Like jurors, we should use our common sense and common experience to guide us.

My water heater at home is set to 130°, a balance between the 120° recommended by the by the CPSC to prevent burns and the 140° recommended by OSHA to eradicate Legionnaires’ disease. It’s a balance: I want to minimize the risk of disease, but I don’t want to literally scar my kids for life if they turn the faucet the wrong way. As the CPSC says, “Most adults will suffer third-degree burns if exposed to 150 degree water for two seconds. Burns will also occur with a six-second exposure to 140 degree water or with a thirty second exposure to 130 degree water.” Hence my compromise.

When I brew my coffee, though, I set the kettle to 190°, brew the coffee for about 5 minutes, then add some milk or cream, so that the coffee is approximately 137° (I measured it) by the time I start drinking it.

My “common sense” tells me that the 130° water in my faucet is not hot enough to give me anything like the burns Stella suffered, whereas the 190° water from my kettle is. So I did an experiment: I set my kettle 130°, poured it into a cup, and then stuck my finger in it with a timer. I lasted about 5 seconds before I felt compelled to remove my finger, and suffered no injury. Then I tried it again at 190° and I couldn’t even get the tip of my finger in, because my instinct made me to remove it. Common sense, right? Common experience, too.

But not to McDonald’s. As recounted in the excellent FAQ file on this site, McDonald’s asserted that Stella’s third-degree burns “could have been sustained at temperatures as low as 130°F” and claimed that “the fact that the coffee that Ms. Liebeck spilled on herself may have been slightly or even significantly hotter than 130°F does not mean that her injuries were worse or more extended than it would have been otherwise.”

McDonald’s defense was stupid and insulting. Whenever someone lectures me about my chosen profession by way of “that spilled coffee case,” I tell them: “McDonald’s tried to convince a jury that 130° water causes burns just as bad as 180° water.” The interlocutor usually stares at me in disbelief then insists that can’t be true. It is true: McDonald’s tried to convince the jury that a small cup of 130° coffee can cause third-degree burns all across a person’s groin and thighs just the same as coffee at 140°, 150°, 160°, 170°, and 180° or higher.

The coffee was obviously much closer to 180° than to 130° — it might have even been higher — and McDonald’s argument was transparently frivolous. Little wonder the jury found against McDonald’s on that.

Once the jury resolved that purely factual question, they needed to resolve this mixed legal–factual question: at what temperature it is unreasonable to serve coffee at drive-through in a deformable cup with an unsecured lid? Whatever you think the answer should be, in the trial of Liebeck v. McDonald’s, it’s quite likely the answer was: any temperature substantially above 130°.

Sound crazy? My own breakfast coffee made at just the right temperature where I can start drinking it might meet that, and surely that can’t be the standard — but thinking like that is just letting my own personal policy preferences intrude upon the actual evidence at trial. 130° is the number McDonald’s suggested to the jury.

Plaintiff’s burn specialist testified that coffee should served around 160°, and that anything over 180° was not fit for consumption. McDonald’s, however, built their entire defense around 130°. They had a doctor testify that 130° is the temperature at which severe burns are inevitable, a unique threshold above which temperatures are irrelevant. Then they had another witness testify that no other coffee place served coffee below 130°.

McDonald’s drew that 130° line in the sand. Was a jury supposed to ignore the obvious implications of that line? To only accept McDonald’s arguments if they helped McDonald’s? McDonald’s effectively admitted that it served every single customer coffee hot enough to cause third-degree burns over a substantial part of their body, and that it had no interest in doing otherwise — and thus effectively admitted the need for punitive damages, too.

We’ll never know what might have happened if McDonald’s had offered Ms. Liebeck a more reasonable settlement before she filed her lawsuit, or if it had treated the incident with the dignity and importance it deserved. But I know this much: McDonald’s approach to the case made the result inevitable.

BIOGRAPHY: Max Kennerly is a plaintiff’s attorney at The Beasley Firm in Philadelphia, Pennsylvania. He blogs at Litigation & Trial.