Judge Denies Gun Manufacturer’s Motion To Dismiss Sandy Hook Suit, Ultimate Issue Still Remains

Given the attention it has been getting on the presidential campaign trail, we here at Abnormal Use recently discussed the Protection of Lawful Commerce in Arms Act (“PLCAA”) and the issue of gun manufacturer liability. The PLCAA, signed into law back in 2005, affords gun manufacturers and sellers immunity in state and federal lawsuits except in situations where the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. The law has found itself in the crosshairs of certain presidential candidates in recent weeks on account of the press coverage surrounding a lawsuit filed against Remington by the families of Sandy Hook victims in which the plaintiffs seek to hold Remington liable for manufacturing and marketing the AR-15 semi-automatic rifle used by the shooter. The now politicized debate centers on the legitimacy of the PLCAA and whether a gun manufacturer should be held accountable to the families of the Sandy Hook victims.

Remiss in the political arena is the actual happenings in the Remington litigation. Back in December, the Remington defendants moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the grounds that they are immune from suit by virtue of the protections afforded by the PLCAA. Last week, Judge Barbara Bellis issued an order denying the motion to dismiss. Before opponents of the PLCAA champion the order as a great victory or proponents chastise Judge Bellis for ignoring the law, a closer examination needs to be made into the basis of the decision.

Under Connecticut law, a motion to dismiss is an attack on the court’s jurisdiction. A motion to strike challenges the legal sufficiency of the complaint. The grounds for the defendants’ motion to dismiss focused solely on the argument that the PLCAA deprives the court of subject matter jurisdiction. When asked by Judge Bellis whether the motion should be treated as a motion to strike, the defendants reaffirmed their motion and stated that they were not challenging the legal sufficiency of the complaint. As such, the motion was treated as a motion to dismiss and the decision confined to whether the court had subject matter jurisdiction over the matter. The decision does not touch on the legal sufficiency of the plaintiffs’ claims.

Framing the issue in this manner, Judge Bellis found that the court has subject matter jurisdiction over the plaintiffs’ claims. In reaching her decision, Judge Bellis relied on a decision from the Second Circuit in New York v. Mickalis Pawn Shop, 645 F.3d 114 (2d Cir. 2011) which previously held that the “PLCAA’s bar on ‘qualified liability action[s]’ . . . does not deprive the court of subject-matter jurisdiction.” Moreover, Judge Bellis found it significant that other courts that have considered the PLCAA as a defense have done so in the context of a motion to dismiss under Rule 12(b)(6), which is the equivalent of a motion to strike under the laws of Connecticut rather than a motion to dismiss.  As such, Judge Bellis concluded that “any immunity that PLCAA may provide does not implicate the court’s subject matter jurisdiction,” and, thus, the motion to dismiss was denied.

We here at Abnormal Use won’t speculate as to whether the political debate over the PLCAA had any bearing on Judge Bellis’ decision. Right or wrong, the penultimate issue – whether Remington is afforded liability under the PLCAA – remains on the table. We assume that Remington is busy drafting that motion to strike as we speak.

Old Spice Class Action: Different Product, Same Story


According to reports, a new class action lawsuit has been filed against Proctor & Gamble alleging that the company’s Old Spice deodorants have caused armpit burns and rashes on “hundreds, if not thousands” of customers. According to the complaint filed in the United States District Court for the Southern District of Ohio, lead Plaintiff Rodney Colley, a 23-year old college student from Virginia, used Old Spice deodorant on several occasions and suffered burns as depicted below:


(Yes, the photograph is included within the pleadings). In addition to Colley, the pleading quotes complaints from Consumer Affairs from seven other customers who allegedly experienced similar injuries. The plaintiffs contend that Old Spice is defective and lacks appropriate warnings about the risks of burning, rashes, and irritation.

In response to the suit, Proctor & Gamble issued the following statement:

We go to great lengths to ensure our products are safe to use, and tens of millions of men use this product with confidence and without incident every year. A small number of men may experience irritation due to alcohol sensitivity, a common ingredient across virtually all deodorant products. For men who have experienced a reaction to a deodorant, an antiperspirant may be a better option because they have a different formulation.

If you are thinking you have heard this before, you have. Earlier this year, we reported on a class action suit filed against EOS alleging that the company’s lip balm causes lips to crack, bleed, and blister. Similar to the statement made by Proctor & Gamble, several doctors opined when the EOS case was filed that consumers were having allergic reactions to natural oils contained in the product. The EOS suit settled just a few weeks after it began with EOS agreeing to provide more details on its packaging about the ingredients and instructions on how to use the product safely.

While it might be overly ambitious to expect the Old Spice suit to settle as quickly as that of EOS, we wouldn’t be shocked if the result is the same. It makes good business sense for Proctor & Gamble to seek a quick resolution with a statement to customers that the product ingredients will remain the same. If not, let’s just hope Old Spice doesn’t have to go back to being associated with sailors and nursing homes.

Porsche Gains Huge Victory in Suit Arising Out of Accident Involving Fast And The Furious Star

Not too long ago, we wrote about a lawsuit filed against Porsche arising out of the accident that resulted in the death of Fast and the Furious star Paul Walker. The suit, filed by Kristine Rodas, the widow of the driver of the 2005 Porsche Carrera GT in which Walker was riding, alleged that the car crashed and caught fire as a result of a failure in its suspension system and a lack of proper safety features. Rodas also alleged that Porsche “designed and manufactured the Carrera GT defectively, causing it to fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner” and lacked a properly functioning crash cage and a proper racing fuel cell.

When discussing the potential outcome of the case, we had this to say about the merits:

While it is too early to determine whether it is Rodas or the L.A. County investigators who are correct, several aspects of this case are intriguing. First, Roger Rodas was an experienced race car driver. On the one hand, his experience could be a sign that the vehicle would not have crashed but for some defective condition. On the other, it could also explain why he felt he could drive the vehicle in a manner far too aggressively for normal road conditions. Second, the suit alleges that the vehicle was originally designed to be a Le Mans race car before being turned into an ultra-high performance super-sports car. We have to wonder whether these were post-manufacture modifications which could effect this product liability suit. Interestingly, this suit focuses on alleged deficiencies with parts fit for a race car, rather than recreational vehicle. Had this accident happened during Le Mans, then maybe we could more easily understand the alleged problems with the racing fuel cell or crash cage. We question whether those parts would have come into play if the vehicle had been traveling the posted speed limit.

As it turns out, the Court shared many of our same thoughts and granted Porsche’s motion for summary judgment. The Court found no merit to the allegations regarding the lack of a “properly functioning crash cage” because Rodas’ fatal injuries occurred when he and Walker collided together during the crash and, thus, would not have been prevented by a crash cage.  The Court also shut down allegations regarding the racing fuel cell causing a fire after the crash because the “undisputed evidence shows Rodas did not die from fire or sustain any injuries from fire prior to his death.”  The Court also found that there was insufficient evidence that the car’s suspension was defective.  We do not know what effect, if any, Rodas’ racing experience had on the Court’s decision; however, as we expected, Porsche previously argued:

The mere fact that Mr Rodas had driven with some skill in race does not mean that he always drove with skill on the street and was incapable of losing control of a car. . . One does not need to be a NASCAR or Formula One fan to know that expert drivers lose control and crash with great frequency.

While this suit did not turn out well for Rodas, Walker’s father and daughter have similar appeals still pending. The lawyer for Walker’s daughter does not appear to be concerned as he released the following statement to E! News:

The issues in the cases are very different. The federal case was filed on behalf of Roger Rodas, who was the driver of the Porsche Carrera GT and was killed instantly upon impact. Meadow’s father, Paul Walker, was a passenger in the car. He survived the crash but was trapped and burned to death because of the vehicle’s defects.

Meadow will continue the fight to hold Porsche accountable for selling a defective product that kills.

Again, we will continue to follow this one closely.

Zen Magnets Fights Back Against CPSC

Not too long ago, we here at Abnormal Use chronicled the saga of Buckyballs in the company’s two year fight against the draconian measures of the Consumer Product Safety Commission to take spherical desktop magnets from the marketplace. When Buckyballs eventually settled with the CPSC, Colorado-based Zen Magnets seized the torch in the fight against the CPSC over the right to manufacture and distribute spherical magnets. Back in 2014, Shihan Qu of Zen Magnets described his reasons for continuing the fight as follows:

I have two very distinct but related motives for continuing this fight.

The first one is obvious. I want to win. I want to keep selling magnets. I want to continue seeing the passion, joy, and inspiration they bring. I want to stay in business. I want to see a victory for magnets.

But number two, I want the CPSC to LOSE. I really really want them to lose. They need some humility and to be reminded of the standard of liberty in this country.

The single biggest issue that must be challenged, the aspect that makes this a landmark case, is that this is the first time the CPSC is arguing that warnings don’t work, which has incredibly vast policy implications. Putting warnings on this is mostly what the CPSC does. Small parts, choking hazards, etc.

Warnings are a sort of agreement a customer accepts upon use of a product. And by assuming that people cannot follow — by the way, there is still nobody who can confirm even a single Zen Magnet ingestion incident — instructions to keep magnets away from children and mouths, they are assuming the American Population is not capable of deciding for themselves. They are taking your right to consent, and fleecing your freedom to do as you will.

We’re the last line of defense, and if Zen Magnets doesn’t stand up, the CPSC gains a remarkable amount of power from consumers. They show the ability to determine behind their closed walls, what America can and can’t have, despite roaring public opposition. They set the precedence of creating an all-ages, nation-wide ban, with the assumption that an American cannot be “expected” to understand or follow warnings.

At long last, we are pleased to report that Qu’s mission has been accomplished (for the most part). By order dated March 25, 2016, Administrative Law Judge Dean Metry found that small rare earth magnets (“SREMs”) are not defective, did not contain inadequate warnings, and, when sold with appropriate warnings, are not substantial product hazards.  In other words, Qu’s reasons for fighting were not in vain.  The case is captioned, In the Matter of Zen Magnets, LLC, CPSC Docket No. 12-2 (March 25, 2016).

As you may recall, the CPSC has argued that SREMs are defective because ingesting the magnets creates a serious risk of injury. While the ALJ agreed that ingesting SREMs can result in serious injury, ingestion is a misuse of the product and not part of the product’s normal operation and use. SREMs, when used properly, are harmless. As such, the ALJ found that SREMs are not defective under 16 C.F.R. 1115.4.

The CPSC also argued that SREMs were defective because the product warnings were inadequate in mitigating the risk. Specifically, the CPSC took issue that a warning label could not be placed on each individual SREM due to the magnets small size and, thus, any persons who obtain lost or shared SREMs will not see any warnings. The ALJ didn’t buy it. As of at least 2012, Zen Magnets contained warnings, including our personal favorite:


This is serious! The grumpy CPSC is about to BAN magnet spheres in the US because they are an ingestion hazard. They don’t trust that you are capable of understanding and following warnings. Prove them wrong, or we all can’t have nice things.  Zen Magnets, LLC, the producer of Neoballs, has had no record of ingestion and we’d like to keep it that way. High powered magnets can cause potentially fatal intestinal pinching if swallowed. Keep magnet spheres away from all orifices (sic), especially the mouth and nose. High powered magnets are not a toy. Keep away from anybody who does not understand these dangers. SRSLY.

The ALJ found that the warnings, including our favorite above, did not contain any fault, flaw, or irregularity. In fact, the ALJ stated “[i]t would be near absurdity to fault [Zen Magnets] for not labeling each individual SREM with a warning.”

Notwithstanding these findings, the ALJ found that prior to May 2010, ZEN Magnets sold some SREMs without warnings and with a suggested age of 12 (rather than 14) and above. As such, those products sold before 2010 are considered toys and substantial product hazards under the Standard for Consumer Safety Specification for Toy Safety. Accordingly, the ALJ granted the CPSC partial relief and required Zen Magnets to compile a list of pre-May 2010 purchasers and offer them a full refund. Ultimately, however, Zen Magnets has to consider this decision a huge win for spherical magnets.

Interestingly, if one were to look for news reports on the ALJ Order, they are nowhere to be found. However, the news is filled with reports like this one about the recent recall of “dangerous” magnets. Those reports arise out of a March 22, 2016 decision from a a related case pending in the U.S. District Court for the District of Colorado involving Zen Magnets sale of certain recalled products it acquired from another company (Star Networks USA) after that company reached a settlement with the CPSC. So, not quite the indictment on Zen’s SREMs the reports may suggest. We will assume their reports on the ALJ decision are forthcoming.

Starbucks Lattes Allegedly Leave Room For More

On the heels of the announcement that Subway settled its 11-inch footlong sub suit, a new class action has been filed alleging that a national chain’s products don’t quite measure up. This time, it is Starbucks in the cross-hairs. According to a report from Top Class ActionsPlaintiffs Siera Strumlauf and Benjamin Robles have filed suit against the coffee giant in the U.S. District Court for the Northern District of California, alleging that Starbucks intentionally underfills its lattes by 25 percent. Starbucks’ baristas are allegedly instructed to make lattes by filling a pitcher with steamed milk up to a “fill to” line, pour shots of espresso into a serving cup, pour the steamed milk into the serving cup, top the latte with milk foam and leave 1/4 inch of free space at the top. The plaintiffs, however, allege that the “fill to” lines don’t correspond to the 12, 16, and 20 ounce cup sizes – an allegedly conscious decision made by Starbucks to save on the cost of milk.

Regardless of the merits of the short-pouring allegations, one particular allegation in the suit gave us pause. The plaintiffs allege that “Starbucks refuses to fill any hot beverage to the brim of the cup. Thus, under no circumstances will Starbucks ever serve a Grande Latte that actually meets the fluid ounces represented on the menu.” If we read that correctly, it sounds like the plaintiffs are actually suggesting that hot coffee should be filled to the brim of the cup to ensure that they are getting the full bang for their buck. We are guessing that had Starbucks done so, there would be a whole other class of plaintiffs clamoring for some massive hot coffee burn litigation. Maybe the plaintiffs should demand Starbucks use bigger cups and let the not filling to the brim policy stand for those who value safety.

It is too early to tell whether this suit will follow in the footsteps of the Subway litigation. Regardless of the size of any potential monetary settlement, we doubt it will be too life changing for any of the plaintiffs. If approved, the class will be open to all persons in the United States who have purchased a Starbucks latte. In other words, all 318 million U.S. citizens can be class members and should expect a free cup of coffee.

Grand Theft Auto Can’t Shake Lindsay Lohan Suit


Back in 2014, actress Lindsay Lohan filed suit against Take Two Interactive, the makers of the popular Grand Theft Auto V video game, alleging that the game improperly used her likeness. As a refresher, Grand Theft Auto features a character named “Lacey Jones” who Lohan alleges is her doppelganger in more ways than one. In the game, the character eludes paparazzi, references the Lohan movie Mean Girls, mentions the West Hollywood hotel where Lohan once lived, and allegedly looks like Lohan. Such similarities Lohan alleges are a violation of her rights under New York civil rights laws. Take-Two moved to dismiss the suit for failure to state a claim, calling the suit “legally meritless” and requesting sanctions due to the obvious publicity grab.

So would this matter turn out just like the actress’s prior unsuccessful lawsuits against Pitbull and E-Trade? Well, no. Not yet, anyway. Last week, New York Supreme Court judge Joan Kennedy denied Take-Two’s motion to dismiss and ordered the company to file an answer to the complaint. Now, we get to look forward to TMZ reports on the discovery process some two years after the suit was filed.

We would like to congratulate Ms. Lohan and her legal team for making it past the treacherous pleading stage.  \But, before Hollywood makes too big a deal out of this, let’s take notice of what this order means. Construing the allegations as true and viewing them in the light most favorable to her, Lohan sufficiently pleaded a cause of action for violation of the civil rights law. The Court has not issued a finding that any of the allegations have merit, only that the matter is deserving of being further litigated. With Lohan’s legal track record, we suppose that may be reason to celebrate.

If this case was the publicity ploy Take-Two suggested, it doesn’t appear to be too successful. We have played Grand Theft Auto many times over the last couple years, but we completely forgot about the lawsuit. We have also come across Lacey Jones plenty of times during the course of our gaming and, surprisingly, not once did we think about Lohan. Jones is way too entertaining.

Gun Manufacturer Liability: Legal Issue or Political Posturing?

If you have been following the presidential campaign, you have undoubtedly heard talk about the issue of gun manufacturer liability. Under the current state of the law, gun manufacturers are immune from suit except under special circumstances. With the number of mass shootings in recent years and the press coverage surrounding the lawsuit filed against Remington by the families of Sandy Hook victims, the issue of gun manufacturer liability has understandably been one of the hot button variety. How a person feels about gun manufacturer liability is often co-mingled with the much broader (and often politicized) issue of gun control and the Second Amendment. But, we here at Abnormal Use must ask the question:  How does gun manufacturer liability stand up when stripped away of its political overtones?

To set the stage, today’s issues involve the Protection of Lawful Commerce in Arms Act (“PLCAA”), signed into law by President George W. Bush back in 2005. The PLCAA affords gun manufacturers and sellers immunity in state and federal lawsuits. The immunity, however, is not absolute. For example, there is no immunity in cases in which the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. Proponents of the PLCAA claim that the law is necessary because manufacturers should not be held responsible when a rogue gunman misuses the product. Opponents argue that the law provides manufacturers free rein to market and distribute guns like “assault rifles” that needlessly endanger the public.

Admittedly, we can understand both sides of the issue. On the one hand, holding gun manufacturers liable for the misuse of non-defective products appears to defy basic product liability principles. Product liability typically rests on three theories (1) defective design, (2) manufacturing defects, or (3) failure to warn. If a person uses a product for a malevolent purpose, but the product is free of defects, then in most instances the manufacturer would be free of liability. If the product is defective and the defect results in injuries, then the manufacturer may be liable. The PLCAA recognizes this and contains an exception to immunity for defective guns. Guns like “assault rifles” are currently legal to sell, own, and possess. In some ways, holding a manufacturer liable for the crimes of others would be akin to holding Cutco liable for a knife attack or Louisville Slugger for an assault involving a baseball bat. On the other hand, guns like assault rifles are different than a kitchen knife or a baseball bat. The AR-15, the gun used in the Sandy Hook shootings, is a military grade assault weapon marketed to civilians. While technically legal, the weapon, unlike a kitchen knife or a baseball bat, arguably is not fit for any reasonable civilian use and needlessly endangers the public.

Josh Koskoff, the lawyer representing the Sandy Hook victims in the lawsuit against Remington, recently stated:

This case is about a particular weapon, the AR-15, and its sale to civilians.  It has nothing to do with the firearms industry as a whole. The AR-15 is to guns what a tank is to cars — uniquely dangerous and not suitable to public use. The AR-15 was designed and manufactured for the military for the purpose of killing the enemy with maximum efficiency. The families’ lawsuit does not contend that Remington should be held liable simply for manufacturing the AR-15. Indeed, Remington and other manufacturers’ production of the AR-15 is essential to the military and law enforcement. But Remington is responsible for its choice to sell that same weapon to the public, and for highlighting the military and assaultive capacities of the weapon in its marketing.

While we do not necessarily agree with all of Koslkoff’s contentions, he makes an interesting argument. What do you think?

Footlongs Measure Up: Subway Lawsuit Settled

Back in 2013, we here at Abnormal Use wrote about a class action lawsuit filed against Subway challenging the restaurant’s “footlong” sandwich claims. The crux of the allegations in the suit was that Subway’s sub sandwiches measured in at just under 12″ long and, thus, were not worthy of the “footlong” label. We questioned the merits of such a suit and were curious as to how it would play out. Now, some two years later, we finally have an answer. According to reports, Subway has reached a settlement in which it will pay $500 to the 10 named plaintiffs. Subway will also spend the next four years placing a “measuring device” in its stores to make certain its subs are, in fact, 12″ long. But, the real kicker is that Subway will also have to pay approximately $500,000 for the plaintiffs’ legal fees.

As far as class action lawsuits against major corporations are concerned, the settlement appears to be pretty light. While the lawyers may have gotten a hefty payday, the plaintiffs only racked up a grand total of $5,000 and, in turn, Subway has to put a ruler in its restaurants. Not exactly world changing for either side.

So, how did Subway get off so cheap? As expected, the case was lacking in the merits department. According to a report from Forbes, testing revealed that the vast majority of the bread was at least 12″ long and any bread that didn’t meet the threshold erred by less than 1/4″. Moreover, the raw dough sticks used to bake the bread weigh exactly the same. The length of the subs varied only due to natural variability in the baking process. In other words, not only does Subway’s sub length largely measure up, the damage the plaintiffs incurred due to any inaccuracies in the bread length is almost non-existent.

Unfortunately, it took two years to reach a resolution to this case lacking in merit. As we mentioned two years ago, a person receiving a sub he/she expects is less than 12″ long could have likely remedied the situation simply by asking for a new bun or even a refund for that matter. After all, Subway makes its subs right in front of the customer and adds toppings at the customer’s direction. Wouldn’t the customer be able to suspect that the sub is short during the process? If not, then would the difference really be big enough to matter? Thankfully, Subway now has rulers, so this will NEVER happen again.

Lawsuit Over Negative Yelp Review Has Unexpected Consequences

Like many businesses, Prestigious Pets, a pet sitting company in Dallas, Texas, is open to reviews on the crowd-sourced site, Yelp. Until a few short weeks ago, the company had a plethora of 4- and 5-star reviews and undoubtedly enjoyed the benefits of being a highly rated business. However, Prestigious Pets didn’t take too kindly to one negative reviewer and has decided to file suit. Now, those precious high-star reviews are getting drowned out by backlash from the Yelp community.

According to a report from Fox News, Robert and Michelle Duchouquette saw the positive Yelp reviews for Prestigious Pets and retained the company to take care of their dogs and fish while they were away on a trip. However, when they checked into their fish tank’s live video feed (who has this?) and saw the tank looked cloudy, they took to Yelp to voice their displeasure with the tank and some of the company’s billing practices.  The Duchouquettes were so upset about the experience that they left Precious Pets with the dreaded 1-star review. In response, Precious Pets filed suit against the couple for allegedly violating a non-disparagement clause contained in a contract the couple signed when retaining the company.  Prestigious Pets is seeking more than $6,700 in damages.

This is the classic case of not weighing the benefits of a “legal win” versus the negative repercussions of filing the lawsuit. Prestigious Pets has a total of 109 Yelp reviews.  Forty-eight of those reviews have come since news of the lawsuit broke. Of those 48, there are 43 1-star and 2 2-star reviews. Prior to the news, Prestigious Pets had 53 5-star and 5 4-star reviews. Doing the crude math, the filing of this lawsuit has brought Prestigious Pets’ rating from an overall average of 4.5 down to a 3 and that number continues to fall.  \Sure, Yelpers can read the reviews and discover that many of the recent negative reviews are mere reactions to the suit and not focused on the services provided. But, they can also see that the risk of a negative review is the possibility of accepting service of a summons and complaint. Not exactly the business model Prestigious Pets envisioned.

Revolutionary Hot Coffee Lawsuits Filed in California

According to a report from ABC-30 (Fresno, CA), two Fresno women have recently filed suit against McDonald’s alleging that they sustained burns caused by hot coffee. There is nothing unique or interesting about two new hot coffee suits as they have been commonplace in the 20+ years since the infamous jury verdict in Liebeck v. McDonald’s. What is interesting, however, is that Plaintiffs’ counsel and ABC-30 seem to think they made some newfound discovery as to the reason these suits keep popping up. As reported by ABC-30:

Wagner says hotter coffee stays fresh longer, so McDonald’s usually chooses to keep it too hot — saving more than $1 million a day at franchises across the country. Legal analyst Jeff Hammerschmidt says that savings may be more valuable than customer safety. ‘It appears McDonald’s has made a business decision to sell the coffee hotter to be able to make more profit and they continue to make more profit even if they’re paying settlements,” he said.

In other words, McDonald’s serves hot coffee because it is good for business. Talk about a newsflash.

We jest at this recent epiphany about the association between hot coffee and higher profits, but the argument is clearly nothing new. The argument was pivotal in the Liebeck  trial and the jury based its $2.7 million punitive damages award on McDonald’s two day revenue from hot coffee sales. In any event, this “corporate greed” theory ignores the simple point made here at Abnormal Use many times – coffee is served hot because people like it that way. In discussing a hot coffee suit filed against Chick-Fil-A back in 2011, we had this to say about the hot coffee-sales comparison:

Back in 1994, Plaintiff’s expert Dr. Charles Baxter opined during the Liebeck trial that the optimal temperature to serve coffee was between 155 and 160 degrees. Defense expert Dr. Turner Osler indicated that coffee served at a temperature as low as 130 degrees could result in burns similar to those sustained by Ms. Liebeck. Further, Reed Morgan, Ms. Liebeck’s counsel, theorized that any coffee served over 140 degrees was “unreasonably dangerous.” If this testimony from the Liebeck trial is true, why do top fast food chains continue to serve an allegedly “dangerous product?” Either restaurants have a diabolical agenda to harm their patrons or they have recognized that people enjoy their coffee piping hot.

The ABC affiliate’s study demonstrates that the Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee. Further, it reveals that the conduct of McDonald’s in the early 1990s conformed to industry standards – both then and now. Critics of the restaurant chain – and those who attempt to use the Liebeck case to advance the agenda of the Plaintiffs’ bar – simply fail to acknowledge the fact that coffee, by its very nature, is meant to be served hot. No one wants to consume a lukewarm cup of sub-140 degree coffee. Restaurants recognize this fact, as do consumers of coffee. Why can’t the trial bar? If Mr. Morgan honestly believes that any coffee served at a temperature greater than 140 degrees is “unreasonably dangerous,” then he essentially argues that coffee should be taken off of restaurant menus. Starbucks did not become a morning staple because of its iced coffee selections.

Does McDonald’s serve hot coffee because it is concerned about its bottom line?  Sure, it does, but what business doesn’t act in ways to maximize profits?  McDonald’s, Starbucks, or any other coffee-selling establishment serves coffee hot because the consumer demands it.  And, for this reason, we have questioned whether coffee can be construed as “unreasonably dangerous” in most situations.

On an interesting note, ABC-30 measured the serving temperature at the McDonald’s at issue in the recent lawsuits and found the temperature to be 153 degrees – less than the optimal serving temperature prescribed by the plaintiff’s expert in the Liebeck case. The coffee in ABC-30‘s break room? It was served at 167.5 degrees.