South Carolina Court Of Appeals Explores Opinion Testimony In New Fire Damage Case

Whether in the form of anonymous comments to an article written by someone else, reviews of businesses, or drafting blog posts, tweets, musing on Tumblr, Facebook posts,  it often only requires a few keystrokes and hitting “enter.”  With all of this, we have become so desensitized to opinion in our daily lives that we do not ask the proper questions to learn if someone is reporting facts or opinion.  However, the South Carolina Court of Appeals recently reminded us that, during trial, we must be discriminating in an evaluating what constitutes fact and what constitutes an opinion. Fowler v. Nationwide Mut. Fire Ins. Co., No. 2012-213250 (S.C. Ct. App. Aug. 6, 2014) is a breach of contract and bad faith case arising from the denial of insurance coverage on a policy held with Nationwide for a house fire that occurred in 2009 in Oconee County, South Carolina.  The Friendship Fire Department, a volunteer fire department, led by its Chief David Wright, responded first to the fire at the Fowler home and found itself ultimately responsible for putting out the fire.  Following the fire, as required by state regulations, Chief Wright filled out a report about the fire, called a “Truck Report,” listing and explaining certain information about the fire. On the Truck Report, Chief Wright noted as follows: (1) for “Area of Origin,” Wright wrote “Living Room”; (2) for “Cause of Ignition,” Wright wrote “Unintentional”; and (3) for “Equipment involved in Ignition,” Wright wrote “Heater.”  Prior to trial, Nationwide moved to exclude the testimony of Wright regarding the cause and origin of the fire as well as the relevant portions of the Truck Report regarding same.

While Chief Wright was never admitted as an expert at trial—an issue which is the subject of a different appeal—he was permitted to testify about the Truck Report and his conclusions therein.  He testified that he wrote “Living Room” because it was the room that was the most heavily damaged and that he wrote “Unintentional” because he did not see or smell anything that caused him to suspect the use of accelerants or arson.  As to the “Unintentional” answer, Chief Wright testified that it was “just his opinion.” Finally, he testified that he believed the heater was involved because a kerosene heater was located at the base of a V-shaped burn pattern on the wall of the living room.  When asked to explain the V-pattern, Chief Wright testified that when he has been around investigators or inspectors, they call it a “V-pattern” when the fire starts at a point and moves up the wall and spreads out like a “V.”  Thus, Chief Wright testified that he believed the heater had instigated the fire because it was at the base of the V-shape.

The jury returned a Plaintiff’s verdict for over $500,000 on the breach of contract and bad faith claims.   On Nationwide’s motion for new trial, the circuit court found that the statements made by Chief Wright were admissible perceptions under Rule 701 of the South Carolina Rules of Evidence. Rule 701, SCRE, states that “[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.”

Despite arguments by the respondents that Chief Wright was merely explaining what he observed, the Court of Appeals held that some of Chief Wright’s testimony was improper opinion testimony because that testimony required “special knowledge, skill, experience or training.” Additionally, the Court of Appeals held that the Truck Report should not have been admitted as a public records hearsay exception under Rule 803(8), SCRE, which includes “reports, . . . of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . ; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.” The Court of Appeals also found that the improper admission of Chief Wright’s testimony and the Truck Report was prejudicial to Nationwide at trial such that a new trial was warranted.

Unlike the unregulated land of Internet reviews, tweets, blog posts, and other social media statements, Fowler makes clearer the delineation of opinion testimony for those who are not admitted as experts.  Going forward, an opinion is something that goes to causation or the underlying issues because it requires “special knowledge, skill, and experience.”

Suicide Can Be Prevented If We Learn To Recognize The Signs

Like many, we here at Abnormal Use were saddened to learn of the recent death of actor and comedian Robin Williams. The tragic suicide of Williams provides us an opportunity to discuss mental illness, especially clinical depression.  Fifteen percent of those suffering from clinical depression commit suicideSubstance abusers are 10 times as likely to commit suicide than the general population.  Women attempt suicide at least two times more often than men, but men are “successful” four times more than women.  Although most people suffering from depression are not suicidal, most suicidal people are depressed. These are very troubling statistics, and we must be aware of them. Just as important: we must learn how to distinguish depression and ordinary sadness, as they are not the same. Treating them as such is dangerous.

While some suicides occur without any outward warning, most do not.  Thus, we can prevent suicides by learning to recognize the signs and symptoms of someone at risk, taking those signs seriously, and knowing how to respond to them.  What are those signs?  Serious depression (low mood, pessimism, hopelessness, desperation, anxiety, inner tension, withdrawal, sleep problems), increased drug or alcohol use, recent impulsiveness, taking unnecessary risks, threatening suicide, making a plan (sudden giving away of possessions, purchase of firearm), and unexpected rage or anger. What to do if you recognize these symptoms in someone or fear someone you know may take his or her life?  Take it seriously. Seek professional help.  A person contemplating suicide may not believe her or she can be helped.  You may have to do more—go with them to the ER or a doctor.  If the person is an attorney, call your state bar’s lawyer assistance program.  Call your employer’s Employee Assistance Program (EAP).  Call the local office of Mental Health America or National Alliance for the Mentally Ill (NAMI).

The national suicide prevention number is 800-273-TALK.

Finally, here is a link to a good article on this subject.  Yes, Williams made a choice to end his life.  But it was a choice made out desperation and pain, symptoms we must learn to recognize to prevent suicide in the future.

Friday Links

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As we complete this week’s coverage of the twentieth anniversary of the Stella Liebeck McDonald’s hot coffee trial, we thought it might be fun to revisit some of our past hot coffee and food related posts. But first: Above, you’ll find the cover of McDonaldland Comics #102 which we felt we had to share in light of this week’s theme. We’re not entirely certain what Ronald McDonald is doing on the cover, but surely, he is being contributorily negligent. And with that, we return to the Liebeck case one last time this week to direct you to some links to our favorite blog posts on that and other hot food and beverage cases.

So, without further ado, here they are below (including the posts that ran this week on the subject):

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony” (Jim Dedman, August 13, 2014).

20 Years of McDonald’s Hot Coffee Case Rhetoric” (Nick Farr, August 12, 2014).

20 Years Ago This Week: The Stella Liebeck McDonald’s Hot Coffee Trial” (Jim Dedman, August 11, 2014).

The Stella Liebeck McDonald’s Hot Coffee Case FAQ” (Jim Dedman, January 25, 2011).

Spill the Beans: The Truth Behind Susan Saladoff’s “Hot Coffee” Documentary” (Nick Farr, January 24, 2011).

Abnormal Use Cited in Today’s New York Times on ‘Hot Coffee’ Documentary” (Jim Dedman, June 26, 2011).

Film Review: Susan Saladoff’s “Hot Coffee” Documentary” (Nick Farr, June 27, 2011).

Statutory Construction: What is a “Documentary” Film?” (Jim Dedman, October 13, 2011).

Thoughts on “Hot Coffee” Director Susan Saladoff’s Appearance on “The Colbert Report”” (Nick Farr, October 26, 2011).

The McDonald’s Hot Coffee Case: Distinguishing Between Facts and Theory” (Nick Farr, March 19, 2013).

Photograph of the Day: The Canadian Hot Coffee Warning?” (Nick Farr, April 24, 2013).

The New York Times Reflects On Post-Liebeck Life” (Nick Farr, November 7, 2013).

Hot Queso Jurisprudence in Pennsylvania” (Jim Dedman, December 12, 2013).

Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case” (Jim Dedman, April 24, 2014).

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.

The McDonald’s Hot Coffee Case: Revisiting The Eyewitness Trial Testimony

One chilly morning in February of 1992, a routine purchase of a cup of coffee in Albuquerque, New Mexico forever transformed the tort reform debate. As a result of the spill of that cup of coffee, 79 year old Stella Liebeck would become the world’s most famous civil litigant. Twenty years ago this week, in August of 1994, Liebeck took her case to a Bernalillo County jury, which awarded her $200,000 in actual damages (reduced by 20 percent due to a comparative fault finding) and $2.7 million in punitive damages. The court later ordered that a new trial would be held due to the “excessive” amount of punitive damages unless the Plaintiff accepted a remittitur of the punitive damages award to $480,000. A few months later, the case settled for a confidential amount, forever establishing it as a fixture of litigation lore and urban legend.

The two week trial would become the most discussed civil case of its time and fodder for late night comedians. Despite the passage of two decades, the underlying facts of the case continue to be debated and myths abound, in part, because there is no widely accessible official account of the case. Because the case settled a few months after its notorious verdict, no appellate court issued an opinion setting forth its key facts and legal issues. Even today, civil litigation is not often covered in detail in the media, and in 1994, the nascent Internet had yet to provide access to online dockets, pleadings, and the like.  So it was that a 1994 Wall Street Journal article and the late night talk shows shaped the opinions of the case for years to come.

In his opening statement, Liebeck’s attorney explained to the jury that Liebeck “received this eight ounce cup of coffee handed to her by her grandson, and placed it in between her knees to hold it because she had difficulty in removing the plastic lid.” Of course, the trial involved a host of expert opinions, warning issues, and damages testimony. But, at its essence, the case involved the actions of Liebeck. All these years later, the trial testimony of Liebeck and her 30 year old grandson, Chris Tiano, are helpful in dispelling the myths that have arisen over the years.

First and foremost, despite what you may have read, Liebeck was not driving the vehicle. In fact, Tiano was driving the 1989 Ford Probe as they ordered breakfast that morning. Liebeck was in the front passenger seat. The two had just driven Liebeck’s brother from Santa Fe to Albuquerque to drop him off at the airport. After that errand, they visited the drive-through of the McDonald’s on Gibson Boulevard. At trial, Tiano estimated that they at the restaurant sometime before 8:30 a.m. that fateful Thursday morning. On August 9, 1994, Tiano, the first trial witness, recalled that they “ordered a couple of value meals,” with him ordering a Sausage McMuffin and orange juice and his grandmother choosing an Egg McMuffin and a coffee. Liebeck testified that Tiano requested the cream and sugar for her coffee. He drove to the window and the McDonald’s employee “handed the drinks out first” and he “handed it over” to Liebeck. The next day of trial, August 10, Liebeck testified that she did not believe that Tiano requested a cardboard tray for the beverages.

The vehicle was not in motion when Liebeck spilled coffee on herself. After taking the drinks and bag of food, Tiano drove from the drive-through to a parking space in the McDonald’s lot. Liebeck testified that Tiano parked “so [she] could put cream in [her] coffee.” On cross examination, Liebeck agreed that the cup’s lid was on “pretty snug” and that the cup did not leak at the time it was handed to her.  She did not notice the pull away tab on the lid (which existed, the defense contended, to permit the addition of cream and sugar to the coffee). Tiano testified that Liebeck “started to fix her coffee” as he was “trying to get [his] meal organized” because he “had to run some errands that morning.” Specifically, Tiano planned to visit the Albuquerque Country Club so that he, an assistant golf professional, could pick up a check for his golf pro father.

Liebeck positioned the cup of coffee between her legs in an attempt to open the lid to add cream and sugar.  Liebeck testified that she initially looked for somewhere else to put the cup of coffee before deciding to hold it between her knees. On that point, she testified that she “took the cup and [she] tried to get the top off” but she “couldn’t hold it, so [she] put it between [her] knees and tried to get the top off that way.” In so doing, she “accidentally” spilled the coffee into her lap when the lid “slid” and “tipped off.”  When asked on cross if she still felt it was wise to hold a cup of hot coffee between one’s knees, she replied that doing so was “just a normal thing to do” as she “wouldn’t expect [the lid] to slide over.” Immediately after the spill, Liebeck felt “excruciating, searing pain.”  Tiano testified that he “looked over” after Liebeck “started screaming” and saw “the cup was inward.” Liebeck testified: “I went into shock. I became all clammy, cold, and was fainting and throwing up or I thought I was throwing up.” The photographs of Liebeck’s injuries – made public in the recent HBO documentary “Hot Coffee” – illustrate the severity of the injuries sustained by Liebeck as a result of the spill.

After the spill, Liebeck and Tiano did not return to the McDonald’s for assistance. Neither Tiano nor Liebeck testified that they returned to the McDonald’s to seek help after the spill. Tiano exited his side of the vehicle and ran to the other side to investigate the reason for his grandmother’s pain and discomfort.  He testified that he shouted to his grandmother that “it’s just coffee. It’s just a hot water burn, nothing serious.”  He further testified that he “let her walk around in the chilly air” and  “she cooled off and got back into the car.” He “thought everything was fine” and the two then “drove down the road” to address his aforementioned errands. At least during their trial testimony, neither of the two witnesses mentioned seeking help from the employees of the McDonald’s franchise.

After leaving the McDonald’s parking lot, Tiano and Liebeck did not immediately seek medical care. Tiano proceeded to the Albuquerque Country Club as planned, and as he testified at trial, Liebeck began to feel nauseous, but he was “still not thinking it’s very serious.” Tiano stopped the vehicle on the side of the road because Liebeck felt she might vomit. As they were stopped, an observant resident emerged from her home to see if they wanted her to call 911. They declined and proceeded again to the country club. Once there, Tiano testified that he left Liebeck in the car as he went to retrieve the check. It was only when he returned to the vehicle that Liebeck requested that they find a local fire station to seek first aid. Ultimately, they drove to Northside Presbyterian Hospital, where she was seen immediately for medical treatment.

20 Years of McDonald’s Hot Coffee Case Rhetoric

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Since the birth of Abnormal Use way back in 2010, we have written much about Stella Liebeck and the infamous McDonald’s hot coffee case. There was no conscious plan to focus on this matter, but sometimes, things simply fall into place. When we published our initial post on Susan Saladoff’s “Hot Coffee documentary back on January 24, 2011, and our accompanying Stella Liebeck FAQ file the following day, we did not predict we would revisit the case as often as we ultimately have. However, within just a few months, those posts generated a friendly retort from a popular social justice blog, a shoutout on National Public Radio, and a mention in, of all things, The New York Times. Abnormal Use would never be the same, and as the years have passed, we have attempted to learn as much as we can about the underling facts and procedural history of the case. This week, in recognition of the twentieth anniversary of the hot coffee trial, we here at Abnormal Use are offering you some additional thoughts on the case and its legacy.

What is it about a 20 year old New Mexico jury trial that continues to create so much furor today? Sure, the case has crept into our vernacular through its references in pop culture, but why? It is ludicrous when one thinks about the hundreds, if not thousands, of personal injury cases that are filed each and every day, many of which involve allegedly defective products, yet the one that garners the most attention is the one about a single cup of coffee. Certainly, the initial media coverage of a litigant receiving millions of dollars due to a hot coffee spill created much public buzz. The subsequent propaganda – from supporters and opponents of tort reform alike – infused the case with additional life as each side attempted to spin the case facts in its own favor. As Internet blogs continue to revisit the litigation, nearly every one has an opinion on the case.

One need only visit at the comments section of Abnormal Use as evidence of the passion surrounding the case. In fact, our hot coffee posts continue to garner comments – sometimes many years after the dates of those posts’ initial publication. While the readers of Abnormal Use may not be a perfect representative sample of the general populace, those comments are certainly evidence that the hot coffee case is far from ordinary.

The more surprising component of the case is its polarity. It seems that one cannot now engage in an objective discussion of the case without first declaring one’s self, “Team Liebeck” or “Team McDonald’s” (or, worse, “Team Tort Reform” or “Team Social Justice”). The caustic nature of the debate is worsened by a general lack of public knowledge of the true facts of the case. Additionally, many advocates stress only those “facts” they chooses to hear while ignoring others that don’t fit nicely into their theory of the case (suggesting that all of us will continue to relitigate the case well into the future).

The opinions on the case tend to fall into one of two categories. There are those who stress the liability issues and those who focus on the damages. The talking points for both camps have been rehashed and recycled many, many times (often without reference to the specific motions or testimony in the case). Yet, each camp has its flaws. Those who argue Liebeck’s contributory negligence run the risk of seeming unsympathetic to her rather severe injuries. Conversely, those who focus on those horrific injuries often overlook the fact that damages are only one element of a negligence claim – an element that is not addressed unless it is first shown that the defendant’s conduct was, in fact, negligent. Neither side is necessarily disingenuous; however, they don’t always see the whole picture of the case when focusing on singular components.

In looking back over the past 20 years, what is the real effect of the Liebeck verdict? Other than providing talking points for lawyers and staking a claim in pop culture, not much. People still drink coffee. They still like their coffee to be served piping hot. Restaurants still serve coffee at temperatures within the range served to Liebeck by McDonald’s in New Mexico that fateful day in February of 1992. At the end of the day, Liebeck v. McDonald’s has provided us with a discourse to advocate for certain platforms. This is not to say that the hot coffee case doesn’t remain important after 20 years. But in the end, these days, it’s mostly just rhetoric.

20 Years Ago This Week: The Stella Liebeck McDonald’s Hot Coffee Trial

As we noted last Friday, August 2014 heralds the twentieth anniversary of one of the most famous civil cases in American history: the Stella Liebeck McDonald’s hot coffee case. Tried on August 8-12 and 15-17, 1994 in New Mexico state court, the case produced a verdict that has continued to reverberate throughout our culture. (Reminder: Liebeck was awarded $200,000 in compensatory damages, a number which was reduced to $160,000 as a result of a patrial contributory negligence finding by the jury. She was also awarded $2.7 million in punitive damages, a figure which was later reduced to $480,000 by the court.). As we have noted in the past, the case settled prior to the issuance of a formal appellate court opinion, and thus, there is no helpful formal account of the matter’s factual and procedural history. This has led to some confusion surrounding the facts, which we’ve attempted to remedy by publishing our Stella Liebeck McDonald’s Hot Coffee Case FAQ. This week, in observance of the trial’s 20th anniversary, we will explore the case in a bit more detail than usual and offer some critical thoughts that go beyond the traditional rhetoric.

Why do so? As the years have passed, the conventional wisdom about the case has begun to shift. For the longest time, the story represented the tale of a negligent consumer who received a large verdict from a sympathetic jury despite her clear contributory negligence. Now, however, a new narrative has emerged. There is now a group that believes that the uproar over the verdict was the result of a nefarious corporate strategy to misrepresent the true underlying facts of the case in an effort promote tort reform. This new line of thinking gained traction with the 2011 release of Susan Saladoff’s editorial documentary, “Hot Coffee.”

Not too long ago, we noticed that one of our favorite blogs, the popular and influential Boing Boing, revisited the McDonald’s hot coffee lawsuit. In that post, author Cory Doctorow, in introducing a linked piece by Alex Mayyasi of Priceonomics, noted as follows: “Remember the old lady who sued McDonald’s for millions because she burned herself by spilling hot coffee in her lap? It never happened. What actually happened was much more sordid, and the deliberate distortion of the story — which is ultimately about a company that caused repeated, horrific and preventable injury to its customers — is a tidy story about how corporations have convinced us that they are victims of out-of-control tort lawyers.” In his article, Mayyasi argues that the verdict led to efforts to erode the Seventh Amendment right to a jury trial. Countering the argument that the case is an example of the need for tort reform, Mayyashi contends that the traditional understanding of the Liebeck case is “incredibly distorted.,” as Liebeck herself “was not greedy and her lawsuit was not frivolous.” He goes so far to conclude that the Liebeck case is “an example of America’s civil justice system working as intended.”

In his piece, Mayyasi relies a good bit on Saladoff, a former plaintiff’s attorney about whom we have previously written here. In so doing, Mayyashi shares Saladoff’s belief that “frivolous lawsuits” are a “myth.” (Were that truly the case, we’d have little to discuss here at Abnormal Use.). To his credit, Mayyasi identifies Saladoff as a “former trial lawyer” who has “represented clients in liability lawsuits” and suggests later in the article that “as a trial lawyer . . . [she] is not an objective outsider but someone building a case for her side.” (Many media outlets, in reviewing or reporting on “Hot Coffee,” neglected to mention Saladoff’s history.). Further, despite Doctorow’s tough introduction to the piece, Mayyasi concedes several points, including the fact that “[c]offee is often served commercially at temperatures approaching or equal to that served to Stella Liebeck; finding Liebeck 80% or 100% responsible may be reasonable.” He also indicates that the McDonald’s representatives’ purported lack of concern about the alleged 700 complaints of hot beverage related incidents “may have seen reasonable given the scale of McDonald’s operation.” Those are some significant statements in a piece dedicated to Liebeck case and the purported erosion of the right to a jury trial.

Here’s how Mayyasi’s described the facts of the Liebeck case:

 After Ms. Liebeck bought her coffee and breakfast, her grandson, who was driving, pulled over so she could add cream and sugar to her coffee. Since his Ford Probe had no cup holders, she placed the cup between her legs. When she fumbled with the lid and spilled the coffee on her sweatpants, she began to scream.

….

She went into shock and her grandson rushed her to the emergency room, where she would undergo surgery and receive skin grafts. She had third degree burns on 6% of her body; the pictures of her injuries are shocking.

It is the gruesome photographs of Ms. Liebeck’s injuries – recently receiving prominence in Saladoff’s documentary – which have convinced many that Ms. Liebeck’s case must have had some merit. Despite the severity of her injuries, Liebeck elected to place the cup of coffee – with its warning “contents hot” emblazoned thereupon – precariously between her legs in attempt to open it and place her cream and sugar therein. How is it a distortion to recite those facts and argue that Liebeck’s contributory negligence should have barred her recovery outright? Can one not argue that the jury got it wrong, or that the defense should have presented a better case with the facts as known? (Interestingly, it is not entirely correct to say that “[Liebeck's] grandson rushed her to the emergency room.” Rather, her grandson, Chris Tiano, testified at the trial that after the spill he traveled to the Albuquerque Country Club to pick up a paycheck before taking his grandmother to the hospital.).

This week, we’ll explore these issues fully and even offer some interesting trivia about the case and even some of the witnesses. We hope you’ll offer your own thoughts on the case, as well.

Friday Links

mcdonaldland-comics-101

Above, you’ll find the cover of McDonaldland Comics #101 which, really, has no apparent legal theme. However, we bring this comic book cover to your attention today because it is the 20th anniversary of the infamous Stella Liebeck McDonald’s hot coffee trial. That’s right, dear readers! Twenty years ago today, on August 8, 1994, that fateful trial began. The case would soon become the most well known American civil trial. Next week, we’ll be discussing the case in much more detail. In fact, we’ll have a week’s worth of coverage!

Apparently, there is a new brewery in the Carolinas called Legal Remedy Brewing Company. How about that?

We dug this article by Jena McGregor from The Washington Post simply entitled “The out-of-office reply, deconstructed.” We’ve been receiving a lot of these lately, and we’re pleased to learn that there is a philosophy of sorts to crafting them.

According to Scientific American, the State of California is now legislating the ability to operate driverless cars. Reports Corinne Iozzio:

The law is finally catching up to driverless cars. As of September 16, the state of California—home of auto newcomer Google—will require test drivers to have a special license, like a trucker or school bus driver. They will need to be employees or contractors of the car manufacturer, complete safety training, and have clean road records. Carmakers themselves will have to apply for a testing permit annually, install manual controls and override systems in each car, submit incident reports and secure $5 million in insurance.

By the way, remember back in 2011 when Scientific American name checked the Abnormal Use law blog? Yes, we do, too.

Oh, and our favorite tweet of late came from our GWB’s own Ron Tate, who commented upon a recent deposition experience:

Buckyballs Dies, Fight Against CPSC Continues

Several weeks ago, we here at Abnormal Use lamented the death of Buckyballs, the controversial desktop magnet, after its two year fight with the Consumer Product Safety Commission (“CPSC”). The Buckyballs saga grabbed our attention from the outset after Buckyballs’ CEO Craig Zucker publicly ridiculed the CPSC’s draconian measures. As traditionally harsh critics of the CPSC, we applauded Zucker’s efforts and were saddened when Zucker finally succumbed to the CPSC back in May.

Little did we know, there still remains a ring bearer in the Fellowship of Magnets.

According to a report from Reason.com, Colorado-based Zen Magnets continues to fight against the CPSC over the right to manufacture and distribute spherical magnets. Shihan Qu of Zen Magnets described to Reason his ongoing 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.

We must applaud Zen for continuing the sojourn. We are particularly intrigued by the company’s thoughts on product warnings. While we do not believe that a warning label should grant a license to sell any product, we, too, have often questioned why the CPSC had problems with these magnets despite what appears to be appropriate warnings. In this case, the CPSC seems to belittle our sense of free will and decision-making at the expense of these companies. Regulation can serve its purpose, but it shouldn’t deprive us of our own ability to self-govern. Unfortunately, we fear Zen will ultimately share a similar fate with Buckyballs. Nonetheless, we applaud its efforts.

Existentialism and Legal Blogging

Recently, I found myself engaged in conversation with a past – and possibly future – legal blogger. The person in question – a lawyer who once regularly maintained a legal blog – had decided to abandon his site, perhaps due to lack of interest, perhaps due to lack of time. However, during the conversation, this former blogger revealed that he ultimately wished to return to the legal blogosphere. He had recently wiped the archives of his former blog from his site, but he wished to start anew with a fresh perspective and approach.

The dilemma: How to do so? And if so, when? It’s hard out there for seasoned blog writers and editors. As we here at Abnormal Use previously noted:

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy – becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

As noted above, the issue confronted by this legal blogger is similar to those who wish to start their first blog, as well. The task of creating a site and regularly contributing to it is daunting. We, as lawyers and writers, tend to think of a blog post as a tedious task on our daily checklist; something that we must stop what we are otherwise doing in order to place ourselves in front of the computer, stare at a blank screen, and hope above all things that a topic materializes in our mind. But as we have noted before, it is a much easier task than that.

We, as lawyers, have a myriad potential posts in us. Any anecdote, complaint, legal pet peeve, war story, or off-hand thought on the latest court opinion can itself become a blog post. Any story that we have told at a party, over dinner, or at lunch with colleagues is fodder for a legal blog. Further, one’s immediate – or reasoned – reaction to another’s blog post is, itself, a potential blog post. In fact, it may be that once a lawyer begins to think of all of these things as blog posts that many such topics will come naturally.

Here at Abnormal Use, we have certainly utilized this approach. In addition to covering the latest products liability court opinions, we also discuss the perils of pop culture references at depositions, legal pet peeves, the existential dilemma prompted by one’s temporary loss of an iPad, and Foursquare check-in’s at state and federal courthouses. Of course, we have also written about the state and federal products liability jurisprudence, social media discovery, and the latest recall news. But’s all fair game and good blog fodder.