Wednesday, May 25, 2011

North Carolina Takes the Rare Hamburger Off the Menu

On The Discovery Channel’s Man vs. Wild, Bear Grylls travels to some of the globe’s most remote areas to demonstrate how a stranded traveler might survive.  Notable among Grylls’ survival techniques is his penchant to catch and eat snakes – raw.  Raw snake does not sound appetizing to our sophisticated palates, but allow me to commend Grylls for demonstrating the benefits of consuming meat in its most natural form.  While these animalistic methods might be useful on Man vs. Wild, North Carolina isn’t buying it.

Last week, our friends at Overlawyered alerted us to a law in North Carolina which makes serving rare or medium-rare hamburgers illegal.  According to this report from America Online, the North Carolina Division of Environmental Health requires that restaurants cook ground beef to an internal temperature of 155 degrees Fahrenheit.  The restriction, which does not apply to steaks, has been implemented to reduce the likelihood of Salmonella and Escherichia coli O157:H7.

While we admit that the sight of a bleeding piece of meat may actually be less appetizing than a live snake, we must question the necessity of the North Carolina regulation.  There is no fault in trying to protect the health and safety of your citizens, and there is no disputing the contamination concerns of ground beef.  However, it seems a little un-American to dictate how a hamburger is to served .  We need to check with Justice Scalia, but certainly the Framers of our Constitution intended free hamburger choice to be an inalienable right.

North Carolina has considered adopting the United States Food and Drug Administration standard which allows restaurants to serve rare and medium-rare hamburgers so long as a disclaimer is printed on the menus.  While we support giving individuals the choice of meat preparedness, by doing this, it appears that North Carolina is more concerned about restaurant liability than citizen health.  Apparently, the potential for food poisoning can be overlooked as long as you are aware that you are assuming the risk.

We here at Abnormal Use do not believe that Bear Grylls would recommend eating raw food on a regular basis when properly prepared options are available.  In the case of the hamburger, however, we do feel that Americans should have a choice.  If raw meat is good enough for Grylls, certainly a rare hamburger is good enough for North Carolinians.

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Tuesday, May 3, 2011

Abnormal Interviews: Adam Avery of the Avery Brewery, Brewer of Collaboration Not Litigation Ale

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Adam Avery, President and Brewmaster of the Avery Brewing Company. Why the president of a brewing company? The answer is two-fold. First, we here at Abnormal Use love to experiment (in moderation of course) with the greatest craft beers our country has to offer. Second, Avery produces a Belgian-style ale known as Collaboration Not Litigation. Once we heard the delightful name of that brew, we simply had to talk to its maker. Avery was kind enough to submit to a brief interview about the ale and the source of its name.

[ON THE ORIGIN OF THE NAME]

AVERY: I believe 2000, 2001, I met Vinnie Cilurzo from Russian River Brewing Company, and we became really good friends. . . . [W]e both had a beer called Salvation. We had mutual friends and, you know, so we were destined to meet and we hit it off. I asked, “Are you going to have a problem with [the beers with the same name]?” . . . I do remember him saying at some time we need to figure out – we should do something together about this. . . . So, the years went by, we became really close friends, and I visited him a bunch of times. When I got out there – I believe it was like 2004 – I showed up at his brew pub and pounded a bunch of beers. We started talking about this idea and his wife, Natalie, came up with the idea to call it Collaboration Not Litigation because he does a lot of “-tion” beers. He has Consecration, Damnation . . .He just has this theme going.

[ON THE BREWING OF THE ALE]

AVERY: We sat down and we blended both of our beers together out of the bottles and came up with the percentage that we thought was really good. So we said as soon as we have time we’re going to do this. We’re going to do a batch of beer and we’ll blend them and we’ll sell it. Well, these collaborations started to become more and more popular. Somebody called me from a brew magazine, and I told him the story. It goes to press. So I see it in this magazine, and I called Vinnie and say, “Hey, we’re kind of f***** here. We actually have to do this beer now, right?” So, he came here to the brewery in 2006 or 2007. He brewed a batch of his beer with us and then we brewed ours. We blended them at the right rate and then boom. I thought it was going to be a one and done. We sold a lot. People were excited about it, so we do a small batch once a year. We brew it typically in January. . . . It’s a fun beer. It’s more about like it just shows the craft industry is really about sticking together and about the rising tide floats all boats, that sort of thing.

[THOUGHTS ON ALTERNATIVE DISPUTE RESOLUTION]

FARR: Would you consider this a good example of alternative dispute resolution?

AVERY: I think it’s the perfect. It’s one that’s unreasonable, though, obviously. There’s still people – and I understand why people have to have trademarks. . . . If we weren’t friends, I’m sure that we would both be like, “Hey, we’ve got to settle this and figure out who’s got the name and who doesn’t.” There are a lot of names out there of beers in the industry that are shared. I don’t know if they’ve come to the same kind of friendship that I have with Vinnie, or if it’s just that we’re a little more laissez faire about trademark and trademark infringement and that sort of thing.

[PUBLIC REACTION TO THE ALE]

FARR: So what has been the public’s reaction to the beer itself and to the name of the beer?

AVERY: It’s been all positive. People really appreciate the fact that we could have sued each other but instead we kept this – our single beers both called Salvation and then we decided to do this blend. Vinnie and I would both think that the blend itself is a better beer than the other two by themselves. It’s just more complexity. There’s a weird kind of combination that goes on. There’s aromas and flavors that are new, that come together between the two beers being brought together. These flavors don’t exist in either of the two beers, but somehow when they come together they create the new nuances. It’s an excellent beer. Do people like it? If you go on Rate Beer and Beer Advocate, these rating sites, it’s rated very, very high and people enjoy it. What craft is to most people is a bunch of home brewers like myself who turn their hobby into a profession, who are not strictly businessmen. They’re actually about passion for making beer and hopefully passion for everybody else’s business as we try to grab more of the market share because we’re fighting over scraps. We’re at 5 percent nationally, so we’ve got a long way to go. If we do that together, it’s going to be a lot easier. This beer is kind of an epitome of that philosophy and thought that I think that most craft brewers have.

[REACTION FROM THE LEGAL COMMUNITY]

AVERY: I get a lot of calls. I get a lot of emails from litigators. They’re like, “We’ve got to pick up ten cases of this for our company party.” I direct them to wherever they are in the country. Hopefully, there’s a retailer near them that’s got some beers. So, yeah, I get comments all the time about it. I’ve never had one say, “You guys are crazy, you should be fighting. ” All the attorneys are like, “This is unbelievable, I can’t believe you guys actually did this. “
[BEER – THE WORLD’S PROBLEM SOLVING AGENT?]
FARR: In your experience, how can beer be a catalyst to solving problems?

AVERY: I think Homer Simpson said it best: “Beer, the cause of all the world’s problems and the solution.” I mean beer is that thing that almost everybody loves. Most people that say they don’t like beer, they think of beer as Bud, Miller, Coors. They think of something that’s fairly flavorless and just carbonated. So, once we get everybody on board with how much flavor can come out of a craft beer, especially something like Collaboration Not Litigation. Everybody drinks a beer together and it just seems like an easy way to – it definitely helps to solve problems.

BIOGRAPHY: Adam Avery is the President and Brewmaster of the Avery Brewing Company. Located in Boulder, Colorado, the Avery Brewing Company has a line-up of more than twenty uniquely named beers which blend “Old World tradition and expertise with ingenuity, creativity and boldness.” You can follow the company on Twitter here.
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Thursday, April 21, 2011

Four Loko: PBJ or Goober Grape?

Manufacturers love to combine two independently successful products and pass the combination off to consumers as a new and original idea. After the surge in popularity of energy drinks and the advent of Red Bull-vodka cocktails, it came as no surprise that the alcoholic energy drink was born. Unfortunately, just like Smucker’s Goober Grape, the results were less than stellar.

Last November, the Food and Drug Administration (“FDA”) warned four manufacturers of alcoholic energy drinks that the caffeine added to their product was an “unsafe food additive.” Citing concerns that caffeine may mask the effects of alcohol, the FDA instructed manufacturers to cease adding caffeine to their product or face the possibility of “further action” under federal law. The FDA made no mention of the after-market mixture of caffeine and alcohol. The FDA’s warning was only the beginning of the bad news for alcoholic energy drink manufacturers.

Recently, a New Jersey man sued Phusion Projects, the manufacturer of the popular Four Loko beverage, in state court, claiming that the product caused heart damage. The plaintiff, 22-year-old Michael Mustica, alleges that he developed a heart arrhythmia after drinking two-and-a-half cans of Four Loko over the course of one evening. Each 23.5 ounce can of Four Loko contains 12 percent alcohol, the equivalent of four beers, and 135 milligrams of caffeine, the equivalent of two cups of coffee. Ironically, the plaintiff claims to have fallen asleep prior to waking with a racing heart and difficulty breathing. Along with his claim of negligence, he also alleges that Phusion Projects failed to warn him of the potential danger of combining caffeine and alcohol. The report was silent as to whether these events took place before or after the November FDA warning.

We may want to withhold judgment until more facts surface. First, the plaintiff claims that his heart condition is the result of one night of Four Loko consumption. However, further investigation could reveal that the plaintiff – like many other 20-somethings – has a significant history of caffeine and/or alcohol consumption. A history of this nature can cause heart arrhythmia even without the consumption of Four Loko. Second, while the FDA’s warning about alcoholic energy drinks did not come until November 2010, concerns over energy drink consumption have been expressed since as early as 2008. Four Loko may have lacked a warning, but certainly, the plaintiff was likely aware of the potential health concerns from drinking 70.5 ounces of an energy drink in the span of one evening.

Furthermore, while we here at Abnormal Use have no medical evidence to refute the FDA study, it would seem illogical to hold Phusion Projects liable under these circumstances. At its essence, Four Loko is nothing more than a manufactured version of a cocktail served in every bar in America. If the combination of caffeine and alcohol is as dangerous as the FDA believes, then why hasn’t it – or some other government agency or official – issued a similar report concerning the safety of after-market mixing? We can only surmise that the FDA, just like the rest of us, likes its peanut butter and jelly sandwiches, but hates its Goober Grape.

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Wednesday, April 20, 2011

Which Came First? The Salmonella or the Punitive Damages?

Mmmmmm, salmonella. It will be a while before I enjoy an omelet again. You can read Holt v. Quality Egg, LLC, 2011 WL 1113780 (N.D. Iowa March 25, 2011) and see why. Due to a 2010 outbreak of salmonella allegedly stemming from the defendant’s products, the plaintiffs sought punitive damages, and Quality Egg moved to dismiss those claims. Quality Egg’s motions were denied. In short, the plaintiffs were able to use offensively information from an FDA form that found some “problems” at the egg facilities in (John) Galt, Iowa, and the facts set forth in this opinion surely reflect the unabashed capitalism set forth in the made for Tea Party movie, Atlas Shrugged. The FDA found the following physical manifestations of grossness:

Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high

Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards

Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses

The house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits

Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses

It’s not a stretch to say that the plaintiffs pleaded that Quality Egg ran its business in a manner where salmonella contamination was likely to occur. Frequently, I like to wax economical, and I have to agree with the defendant’s course of business here. Given the facts, I think any rational actor choosing between cleaning up 8 feet of chicken manure and the chance of having to pay punitive damages would pay the punitive damages. Other trial strategies of the defendant include using real evidence rather than demonstratives. The smell of the manure will truncate jury deliberations.

I suppose that the lesson learned from this case is that grossness will support a claim for punitive damages. Or that business practices should be reviewed in light of the potential for litigation. Maybe the Quality Egg officers looked at those large piles of dung and thought that nothing would happen, or that the piles would take care of themselves. That was not the case. This is probably a case where some good science and statistics could have informed the egg laying practices: Small piles of manure – small chance of passing salmonella to eggs. Big piles of manure – big chance of passing salmonella. We posted earlier that the industry standard should be allowed a little more weight as a method of explaining business practices to a jury, but I can’t think that the industry standard would be of much help here. The small problems of today can compound and become mountains of manure that are hard to handle in the future.

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Wednesday, April 13, 2011

The Peanut Butter Products Liability Litigation Blues

As a defense lawyer, we are often place in the strange position of having to prove a negative. Sure, it’s supposed to be the plaintiffs’ burden to prove his or her case, and in theory, at least, everyone is innocent, er, not liable unless proven otherwise.

But we all know it doesn’t happen that way sometimes.

Take the recent case of the contaminated and recalled peanut butter. You remember all that, right? In 2007, ConAgra Foods peanut butter, marketed under the national brand Peter Pan and Wal-Mart store brand Great Value, were linked to several hundred cases of salmonella poisoning, and a massive recall was issued for the spreads. [Read more about that recall here.]

What followed this recall, dear readers? You guessed it! Massive amounts of litigation! So much, in fact, that it was all consolidated by the MDL Panel, at least for pretrial proceedings.

Since 2007, the slow wheels of justice have been turning. On March 23, the Northern District of Georgia ruled on ConAgra’s motion for summary judgment in In re ConAgra Peanut Butter Products Liability Litigation, 2011 WL 1060990 (N.D. Ga. March 23, 2011).

Not to get too graphic, but there are only a few ways to prove if a person has in fact contracted salmonella poisoning, or if they just have a nasty case of the stomach bug. You guessed it: they test one’s blood and other bodily fluids. The Court officially noted: “[T]hese samples are important in determining causation.” So, a number of plaintiffs stepped up to the proverbial plate and supplied samples. When some samples came up negative for salmonella poisoning, ConAgra moved for summary judgment based on lack of causation. Slam dunk, right?

Apparently not.

The Court denied the motion for summary judgment without prejudice because “without the plaintiffs’ individual medical records, it is unclear when the sample was taken and whether there is a scientific or medical explanation–other than another illness–for a negative test. Therefore, ConAgra is not entitled to summary judgment before individual discovery on plaintiffs’ medical records is complete.”

We’re not sure exactly what the parties have been doing for the four years since this whole thing started, but apparently, the plaintiffs have not been trying to gather medical records or retain experts to satisfy their burden. Nevertheless, the Court granted them additional time to hold ConAgra hostage – otherwise known as “satisfy their burden” – in these cases.
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Thursday, April 7, 2011

FDA Convenes Expert Panel to Consider Food Dye-ADHD Link

Last week, a Food and Drug Administration advisory panel composed of doctors, scientists, and consumer representatives spent two days reviewing evidence that purportedly shows a link between synthetic food colorings and ADHD, or hyperactivity, in kids. Artificial dyes are added to many familiar snack and junk foods – staples of the modern diet. This alleged link has been the subject of ongoing debate for decades, pitting the food industry against parents, public watchdog groups and academics who have demanded a closer look at food additives.

Businessweek reports that the FDA believes there is not enough evidence at this point to definitively conclude whether food dyes contribute to ADHD. The panel’s task thus was not to consider imposition of a ban on the additives, but rather to consider whether foods should require warning labels or whether more research should be done. Well, the panel has spoken. CBS News reports that although the panel recommended that the FDA further study the possible link, it voted 8-6 that warning labels are not necessary. There is not enough evidence at this point, according to the panel, to show any link. As it stands, packages must list the food colorings on its labeling, but no warnings about a potential link to hyperactivity are required.

Interestingly, across the ocean, where this issue is already “old news,” the European Food Safety Authority has already mandated that foods with color additives contain warning labels for consumers. Here at least, additional regulation may be on the horizon, but not soon. One last thought: Perhaps it’s not the color additives that instigate the alleged behavioral problems, but the overall quality of the snack and junk foods, their sugar content, or even the lifestyle choices of the families that purchase said food in order to appease the sweet teeth of their children.

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Tuesday, April 5, 2011

Abbott Labs Wins Motion to Dismiss

Where have we gone so wrong, America? Our pioneer forefathers are rolling in their graves. Whereas they endured disease, famine, and early death, we spit in their faces, enjoying our iPhones, antibiotics, and frivolous lawsuits. Some measure of order was restored in O’Neil v. Abbott Laboratories, Inc., No. 11-11, 2011 WL 902427 (E.D. La. March 11, 2011), when the court dismissed a complaint alleging infant injury from beetle parts allegedly present in Similac, which you may remember from here. Put simply, there may have been some ground up warehouse beetle in 0.2% in a particular lot of infant formula. No big deal. Even the FDA says that there is no immediate health risk just a chance of GI irritation.

Plaintiffs presented a putative class action based on the fact that their child suffered diarrhea and diaper rash due to consumption of Similac. Do you know what a pioneer would call a day in which he had to face only diarrhea and diaper rash? An outstanding day. If I told my mother that I found a bug in my food, do you know what she would call it? Protein. Oh, America, we have become a nation of wimps.

The court saw this putative class action for what it was, and used Iqbal to dismiss the action. Noting that infants often suffer diarrhea and diaper rash for “non-entomological reasons,” the court subtly chastised the plaintiffs for bringing a negligence-styled products liability action, when negligence is not available in the Louisiana Products Liability Act against manufacturers. Nevertheless, the court afforded the plaintiffs a chance to amend, and even spelled out the four elements that a plaintiff’s complaint must satisfy on its face.

Sure, it may be discomforting to imagine a baby consuming a little warehouse beetle. But babies lick the floor and eat other disgusting things. I’m sure that these concerned parents who think that their kid may have eaten a little bug would not self-report if they found their child chewing on a shoelace that may have touched a public restroom floor or other germ-infested surface. Unfortunately, this case will be refiled in a style that survives the motion to dismiss, and you and I will get the class action settlement notice by mail or email a year from now. Millions of dollars wasted to litigate some GI problems. Oh, America, what have we become?
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Wednesday, March 9, 2011

Hot Coffee: Take Two (In Florida)

We here at Abnormal Use garnered a bit of buzz with our recent comments on Susan Saladoff’s Hot Coffee documentary and the Stella Liebeck litigation. Some of our critics have interpreted our remarks as an attempt to re-litigate that infamous McDonald’s case. Those critics scolded us and purported that “it’s over.” They advised us to simply “move on” and write on other topics. Perhaps those critics were right. Certainly, the details of a 1994 lawsuit must be irrelevant in today’s legal landscape. However, someone forgot to tell Florida’s Cynthia Gamrot.
According to the local ABC news affiliate, Ms. Gamrot recently ordered a cup of coffee at a Chick-Fil-A drive-thru in St. Petersburg, Florida. She allegedly spilled coffee in her lap and sustained second- and third-degree burns after the cup’s lid “popped off.” The coffee was served at a temperature somewhere between 170 and 200 degrees which was reportedly in accordance with Chick-Fil-A corporate policy. As a result, she sued the owner of the St. Petersburg Chick-Fil-A. (The report did not specify the jurisdiction in which the case was filed). Sound familiar?
In response to Ms. Gamrot’s lawsuit, Tampa’s ABC Action News tested the serving temperature of 33 cups of coffee from 10 national restaurant chains – a task reminiscent of law clerk Danny Jarrett’s work in the Liebeck case. The station’s study indicated that the majority of the coffee was served between 150 and 180 degrees. It should be noted, however, that the coffee served in the 150-degree temperature range came primarily from Arby’s and Wendy’s – two restaurants that do not serve breakfast and are not historically known for their coffee. Starbucks, Dunkin Donuts, Krispy Kreme, and McDonalds all tested in the 168 to 180 degree range.
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.
In no way are we here at Abnormal Use intending to trivialize the injuries of coffee burn victims.
No one is disputing the severity of Ms. Liebeck or Ms. Gamrot’s burns. We do, however, question the need for attributing liability for those burns to the producer or seller of the coffee. There is no evidence that either Ms. Liebeck or Ms. Gamrot expressed any concerns with their fast food-produced coffee prior to their accidents. In fact, we imagine they probably enjoyed the hot product, which is why they ordered it in the first place. They might have even complained had they been served coffee cooler than the industry standard temperature. Simply put, hot coffee does not become “unreasonably dangerous” until it is negligently spilled by the consumer.
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Thursday, March 3, 2011

Soda: The New Carcinogen?

“Every absurdity has a champion to defend it.” – Oliver Goldsmith. Here’s another thought: Drinking a soda is just as detrimental to your health as smoking an entire pack of cigarettes. Now, we here at Abnormal Use don’t have any proof for that last statement, but we’re sure you’ll soon see the campaign about the evils of “caramel color.” According to the Center for Science in the Public Interest, the caramel coloring in popular colas contains carcinogens.

The culprit it seems, is 4-Methylimidazole, an innocent-sounding substance, don’t you think? Do not be fooled. The Executive Director of CSPI, Michael Jacobson, has taken to the Huffington Post, where all great news stories are faithfully told, to spread the word that cola contains cancer causing agents. California has added 4-Methylimidazole to its Proposition 65 list [PDF]. 4-Meth has caused various types of cancers in lab rats. CSPI has even gone so far to warn us of this danger by concocting a Toxi-Cola graphic, showing all of the terrible things in the product.

Let us first say that we do not trust the public interest. We look after our own interest, and, as rational people all look after their individual interests, order and efficiency are maintained. Second, while we do occasionally wear tin foil hats, we have to believe that, if cola really caused cancer, we as a society would have figured it out before now. Such is the opinion of the author of the appropriately named CSPIscam website. Ben Forer of ABC News filed this report quoting one Dr. Fred Guengerich, a biochemist, who appears to be a very smart dude:

“Is it a carcinogen? The tests have shown in mice it can increase the risk of cancer. On the other hand, there is also evidence in male rats, it prevented several kinds of cancer,” said Guengerich. “Basically my advice would be just to relax . . . I did some simple math. … If you look at the study in terms of what the mice got, in terms of causing any effect, a human being would have to drink more than 1,000 sodas a day.”

We don’t know of any associate that drinks 1,000 sodas a day, but this has all the makings of a nice lawsuit. A Plaintiff sues and claims that caffeine addicted him to cola and that he drank hundreds of colas per day, ingesting tons of carcinogens and high fructose corn syrup. Hey, that’s not his fault, purports his attorney. Someone should have told him that its perilous to drink hundreds of colas per day. How else was he to know, after all?

We think the best option is a class action settlement where the settlement includes a lifetime supply of cola. Perhaps this is an advertising gambit of Pepsi to bring back the long lost product Crystal Pepsi, which we know we have all spent the past 18 years pining for. Nevertheless, be on the lookout for junk science, and take pride in your caramel-colored beverage.

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Wednesday, February 23, 2011

It’s Cheese and a Lawsuit Against The Mouse

The Mouse takes great umbrage that someone would complain of the cheese he graciously bestows upon us. The Mouse takes great pride in his cheese. But as you can see here, here, here, and here, multiple news outlets and blogs have picked up the story of a recent lawsuit filed against Disney for the ancient tort of injury by Nacho. Unfortunately, this case features a real injury. Four-year-old Isaiah Harris became hurt when he found himself about to fall (from an unsteady chair, of course), grabbed a tray of food for balance, and suffered an encounter with a “paper cup of scalding nacho cheese.” Of course, like all hot food and beverage proceedings, this lawsuit conjures up the spirit of Stella Liebeck, her hot coffee lawsuit, and its progeny that have been well chronicled. So in light of all of that, what is the real significance of this lawsuit?

First, it’s amazing to see the public reaction to these lawsuits. Scroll down through the comments to the news stories and blogs to see thoughts from those who have absolutely no sympathy for the child and blame everything on the parents. The commenting public now automatically equates a hot food lawsuit with frivolity, which, lawyers who followed the Liebeck case know is not always the case. Ms. Liebeck probably did very well for herself, settling her case on appeal after receiving a substantial jury verdict. Nevertheless, some part of the public thinks that hot food lawsuits are frivolous and remain unafraid to air their personal grievances. Whether this is attributable to a vague conception of a litigation tax on products, or some other archaic conception of pure contributory negligence, would be a fairly boring subject for a sociology paper.

Second, not that the lawyer would need this, but it is interesting that the public can issue spot in such cases. Scroll through the comments and see the number of people that remark upon the picture of Isaiah, the probability that a paper cup of cheese would land precisely on his mouth (where it looks like he tried to drink the cheese), and posit their own version of the facts. Website comments now double as free jury research. My own personal issue-spot: Why didn’t anyone handling this paper cup of cheese notice the purported temperature?

Third, and getting to the legal matters at hand, it’s not clear to me what the reasonable expectation of the consumer would be in a case involving nacho cheese. It’s not at all clear to me that the subject nacho topping was actually cheese. Does a consumer have a reasonable expectation that his or her nacho topping is actually cheese? It would be perfectly appropriate for the plaintiff’s parents to argue that they assumed that the topping was an unnaturally viscous liquid-at-room-temperature cheese-like substance. If it was cheese, then we will likely need to look for a cheese expert from the American Cheese Society and perhaps attend the Sonoma Valley Opportunities and Challenges Cheese Conference for further education on a consumer’s reasonable expectation of cheese temperature. There is no doubt that this lawsuit will appear on the conference agenda as the public fallout from injury by cheese is a serious topic to consider.

Fourth, while we often call out plaintiffs’ lawyers on the blog, the plaintiff’s attorney in this case, one Sean Cahill, seems to be a legitimate defense lawyer, who belongs to several defense-oriented organizations, at least according to his website. Perhaps Mr. Cahill is simply trying to beef up his cheese liability practice. Who knows? We’ll see if The Mouse pays something on this suit. Anyway, next time you go to Disney World, test the nachos.
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