Coffee: The Next Great Humanitarian

 Exo-Reaction-Housing-System-Easy-to-Assemble-Flat-Pack-Emergency-Shelter-7-537x340

We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System -  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.

housing_example

 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

Hot Queso Jurisprudence in Pennsylvania

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

The New York Times Reflects On Post-Liebeck Life

Recently, The New York Times published a “Retro Report” on the infamous Stella Liebeck McDonald’s hot coffee case. The report included a 12 minute video on the “facts” of the case which contained interviews from the parties’ attorneys as well as a Wake Forest professor. Since we have already written ad nauseum about the facts and published a comprehensive FAQ file on the case, we will refrain from any unnecessary repetition. That said, the writer Hillary Stout’s well-done article, however, presents some novel issues worthy of comment. So here we go again.

Stout’s point is this: Regardless of your opinions on the merits of the Stella Liebeck case, significant safety advances have been made in the field of coffee safety – sculpted lids, lower serving temperatures, cup holders, et cetera. – since the verdict was rendered more than 20 years ago. While the actual effect of the Liebeck lawsuit on these advances is unclear, Stout’s point is well-taken. But, what common product with any potential to cause injury hasn’t been made safer over the last two decades? No matter the product, we should always seek safer, more convenient alternatives. Coffee is no exception. The advances in serving coffee are certainly designed with safety in mind. Interestingly, however, none of the safety advances involved lowering the serving temperature to less than 130 degrees – the temperature at which Dr. Turner Osler testified in the Liebeck case could have caused her third-degree burns. While the report states that McDonald’s has lowered its serving temperature from 180-190 degrees to 170-180 degrees (that of Starbucks), the lowered temperatures would not prevent burns such as Liebeck’s. Despite the advances, one fact remains: people like coffee hot.

As Stout properly points out, coffee, at least that purchased from restaurants, is far more prevalent today than it was in Liebeck’s era. No one who has ever driven past a Starbucks at 8:00 a.m. would contend otherwise. With greater consumption comes the increased chance of injury. Despite all of these safety advances, coffee accidents still occur. Stout reports that an average of 80 people a year are hospitalized for coffee and tea burns (many of which occurred at home) at the William Randolph Hearst Burn Center at New York-Presbyterian/Weill Cornell Medical Center. Whether the cup is more insulated or contains a sculpted lid, people will continue to have accidents when drinking a hot beverage. But, not everyone will file suit over it. Hot liquids, whether 130 degrees or 170 degrees, will burn if spilled. Absent lowering the temperature to a point at which the beverage becomes undrinkable, no safety advance will change that.

On another note: Remember the time The New York Times cited to our blog about the McDonald’s hot coffee case? If not, see here for more on that fateful day.

McDonald’s Coffee Cup Change: Good for the Environment or Potential Legal Fodder?

Last week, McDonald’s announced it was switching from polystyrene (aka Styrofoam) to double-walled paper cups for hot beverages in all of its restaurants. The move is made in response to changing consumer preferences and an increase in environmental consciousness. There’s nothing wrong with that, we suppose. However, whenever McDonald’s acts, it seems as if someone is there to tell us that it is bad. If you are asking why this is reportable news, then let us catch you up on the last 20 years of legal pop culture. For starters, McDonald’s coffee cups (and its coffee) are no strangers to publicity. Ever since Stella Liebeck infamously spilled a cup of McDonald’s coffee into her lap back in 1992, McDonald’s coffee has been parodied in major television shows such as “Seinfeld” and has been the cover story of an HBO documentary on the civil justice system. Always a topic of debate among lawyers and non-lawyers alike, it should come as no surprise that when the fast food chain announced a change in material for its hot beverage containers, the news sent the interwebs into a flutter.

The major significance of the announcement is not the reasons for the change, but rather the effect the change may have on future litigation. Inevitably, someone will spill coffee from one of the new cups onto himself and claim that the spill would not have occurred but for the double-walled paper construction. While we have no idea whether there is a financial difference between paper and polystyrene, we wouldn’t be surprised to see an argument in the future that McDonald’s is sacrificing consumer safety in favor of increased profit margins. Such an argument is likely a complete farce, ignoring the valid reasons behind the change. Unfortunately, this is the climate in which McDonald’s and other businesses face.

The environmental impact of a switch away from polystyrene cannot be understated. Given the billions of cups of coffee sold by McDonald’s, the impact is significant. Nonetheless, any change, albeit a good one, made by McDonald’s regarding its coffee production, will undoubtedly find its way into the allegations of a complaint. Remember, you heard it here first.

New Hot Coffee Case Filed In New Jersey

Here we go again. It’s another hot coffee case.

According to NorthJersey.Com, there’s a brand new McDonald’s hot coffee case brewing. (Apologies for that pun). Here’s the info:

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.

Arnold insisted on Monday that Borbolla’s lawsuit is not frivolous.

“This is a serious case involving lack of due care on the part of McDonald’s,” she said. “If the naysayers saw the burns on my client’s genitals, they would be speechless.”

Again, let’s not confuse the issue of severe burns with liability. Simply because the coffee in question may have caused injuries, it does not mean that McDonald’s is liable.  That is a mistake that many have made in discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve not yet  read the complaint, but if the news report is accurate, then the Plaintiff, Mr. Borbolla, took the cup of coffee from a McDonald’s employee, presumably from the front counter of the restaurant, made his way to his seat, and then spilled the hot beverage on himself as he proceeded to sit down at a table. The liability case will focus extensively on that brief journey.

We’ll keep you posted on this one. Our favorite part of the article is the following sentence, which also serves as the tagline to the AP file photograph of a McDonald’s logo: “This is not the first time McDonald’s coffee inspired a lawsuit.”

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

AP FILE PHOTO
This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.
Borbolla, of Homestead, Fla., was in Bergen County at the time to visit family, his attorney said.

- See more at: http://www.northjersey.com/news/Florida_man_suing_McDonalds_over_coffee_incident_in_River_Edge.html#sthash.BFvkXgTD.dpuf

McDonald’s Chicken Sandwich Allegedly Causes Voice Change

Well, McDonald’s once again finds itself on the wrong end of a case caption.  According to the New York Post, a gospel singer in Brooklyn, New York has sued the fast food chain claiming that her voice was ruined after biting into a piece of glass found in a chicken sandwich.  The incident, which happened way back in 2010, has allegedly caused the former alto to lose her soprano-status.  In addition, her now raspy voice has others confusing her for a man while on the phone. We suspect they may take this deposition by video.

As with any new lawsuit in its baby stages, we here at Abnormal Use have no idea whether the plaintiff’s claims are valid.  Nonetheless, we know how to defend the case from a damages perspective.  First, how is a voice ruined simply by biting into glass?  At least according to the report, it appears the singer’s allegations suggest she swallowed the glass, thereby damaging her vocal chords.  After knowingly biting into a piece of glass, wouldn’t the next step have been to spit out the food?  It seems some of these damages could have been avoided.

Second, how does one value the difference between an alto and a soprano, assuming the allegation is true?  Does an alto gospel singer find better singing gigs than sopranos?  We recognize that the change may have been unwanted, but it seems like the singer could make the most of the situation and turn this into a positive.

Unfortunately for McDonald’s, unlike the post-verdict, anti-tort reform rhetoric regarding the Stella Liebeck case, this matter won’t be tried on damages alone.  If glass was in the woman’s chicken sandwich, then it certainly should not have been there.  Once that presumed liability hurdle is surpassed, then – and only then – will her damages become an issue.

Photograph of the Day: The Canadian Hot Coffee Warning?

“If this was another country, we’d have to tell you that this coffee may be hot.  Good thing this is Canada!”

We couldn’t resist sharing this photograph above of a Canadian take-out coffee cup, which, not unexpectedly, is making the rounds on the Internet this week.  Twenty three years after Stella Liebeck spilled coffee on herself in the parking lot of a New Mexico McDonald’s, the culture still turns to her lawsuit for commentary and, as the image above indicates, legal humor.

So, today, we direct you back to our helpful Stella Liebeck McDonald’s Hot Coffee Case FAQ, in which we attempted to offer an objective accounting of the case using only the pleadings and contemporary media coverage.  Sure, such an objective, facts-only FAQ won’t earn us a spot on HBO’s documentary line-up, but we are still pretty proud of it.

(Hat tip: Overlawyered).

Taking Issue With “Blame The Lawyers”

While killing time recently, I ran across this rant posted on the Opinion page of CNN.com, written by Dean Obeidallah, who is apparently “a political comedian,” and a former attorney, among other things.  Well, we don’t think he was trying to be funny in this column.

In fact, I take issue with his tone.

Obeidallah’s basic point is that—wait for it–America is too litigious.  Certainly not new material.  He uses a recently-filed lawsuit against the TV doctor personality “Dr. Oz” as the latest evidence for this theory.  Apparently, a diabetic man is suing Dr. Oz because the remedy Dr. Oz suggested caused the man to suffer burns on his feet.  Of course, as Obeidallah notes, the gentleman seems to have ignored some of the basic instructions for the remedy.  You can read more about the lawsuit here.  Obeidallah then continues his column by providing a list of other “ludicrous” lawsuits (although we noticed that he does not mention the infamous Stella Liebeck McDonald’s Hot Coffee case).

Obeidallah’s verdict on the reasons for our litigious society?  A perfunctory “Blame the lawyers” slogan, especially plaintiffs’ personal injury lawyers, who hope for a quick settlement “so that they can do as little work as possible before seeing their own payday,” and “taking a questionable case that will reap you some media coverage and money.”

Now, we here at Abnormal Use have worked with–and against–a number of hard-working, honorable plaintiffs’ personal injury lawyers who are not just good, but great, attorneys.  We’ve also worked with some who didn’t quite hit the mark.

But we’ve met and worked with just as many great and not-so-great lawyers on our own side of the bar.

Despite his anger, Obeidallah does make one point that we don’t see often in such analysis.  There are a “growing number of lawyers out there struggling to make ends meet,” he says.  He might be on to something.  According to a recent Wall Street Journal column, there are approximately 21,800 new legal jobs each year for the approximately 44,000 law school graduates.  Those numbers don’t crunch.  Hungry lawyers, Obeidallah suggests, might be more willing to take a questionable case simply to keep their practices afloat.

There is, of course, a larger conversation in the legal community these days—about the role of law schools, the quality of legal education, and the available jobs for graduates and seasoned lawyers alike.  We will continue to monitor these issues, comment upon them, and invite your input, as well.  We hope that the tone of these discussions remain civils, and don’t always have to be accompanied by column headings as abrasive as Obeidallah’s “Dr. Oz suit is another reason people hate lawyers.”

We think these heavy subjects deserve a more nuanced approach than that.

The McDonald’s Hot Coffee Case: Distinguishing Between Facts and Theory

The late paleontologist Stepehen Jay Gould once said, “Facts do not ‘speak for themselves.’ They are read in the light of theory.” We here at Abnormal Use never really understood what Gould meant until we read this editorial by Daniel Leddy at silive.com. The piece, entitled, “Advance legal columnist: Look at all the facts behind outlandish jury awards,” suggests that there is normally a rational explanation found in either the law or the facts when a lawsuit produces a seemingly absurd result. While not all results are warranted, we agree that people should gather all the necessary facts before forming any opinions.That said , Leddy’s opinions on the legitimacy of jury verdicts is not what caught our eye. Rather, it is his one and only case sample – the famed Stella Liebeck McDonald’s Hot Coffee Case.

To demonstrate that not all jury awards are as bad as they seem, Leddy proposed to reveal the “actual facts” of the case. For the most part, the facts Leddy outlines are consistent with those found in our comprehensive FAQ file. While we have both attempted to provide an objective account of the infamous hot coffee case, we ultimately reach different conclusions about the case. So, how can this be?

Stephen Jay Gould was a wise man.

Facts are facts. But, their meaning is all in how you read (or present) them. For example, Leddy indicates that McDonalds served coffee at temperatures close to 190 degrees and that, according to the plaintiff’s expert, liquids at 180 degrees could inflict burns in just a few seconds. All true. However, he omits evidence that Liebeck would have suffered the same burns had the coffee been served at 130 degrees – well below the optimal temperature range (155-160) recommended by the plaintiff’s expert. More actual facts, but these paint a much different picture.

The difference is in theory and what one wants to prove. The facts can’t be changed. They are what they are. Nonetheless, both sides have a job to do. Whether it is the lawyers at trial or legal bloggers some 20 years later, the facts have to be presented in a manner that supports your theory.

Again, we agree with Leddy’s premise that people should learn the facts before forming any rash opinions. However, it is not always that easy. As is the situation with the Liebeck case, the notion that one is going to present you with the “actual facts” so that you can see the truth is misleading. More often than not, those facts are being filtered through a theory and may not be telling the complete story.

We don’t mean to discourage anyone from gathering information. Rather, our purpose is quite the opposite. Just pay attention to your source – whether it is Abnormal Use, Leddy, or anyone else – and form your own theory.

P.S. In light of this fact/theory distinction, we must continue to refer readers interested in the hot coffee case to our FAQ file. The FAQ is a comprehensive, source-based account of any and all information readily available to the public.

On The Perils of Replying To Blog Comments

We here at Abnormal Use encourage our readers to comment on our posts. We can be a bit out-spoken at times (even blunt), so reader comments are a means of encouraging healthy conversation about those issues. Unfortunately, we sometimes allow that conversation to remain one-sided. We love reading your comments. Honestly, we do. When living the double life of the lawyer blogger, it is just hard to find the time to respond in the way you deserve. But one day, we promise to reply to each and every remark.

One day, we promise to reply to the 30 comments to our post about the potential biases of Hot Coffee documentary filmmaker Susan Saladoff. Perhaps, we will finally find the time to respond to one reader who asked:

By the way, exactly how much are you being paid for that “obligation”? I’m very interested in that “pesky little detail” of yours.

Sigh. Soon, we will let her know that we do not represent McDonalds, but we would love to do so, if she could get us connected.

Maybe, when we have a spare moment, we will respond to this comment, posted a year and a half after our story:

WHO WAS TELLING US THAT STORY [Stella Liebeck lawsuit]????? Why is it that Nick Farr, and the others who have posted demeaning and insulting comments about Susan Saladoff, did not ask themselves that question? Why is it that these folks did not ask themselves what the motivation was for the people who decided to circulate that total distortation of Stella Leibeck’s case?

When we have time, we will let her know that our goal has always been to put forward as much factual information as is available on the McDonalds case regardless of the “side” it discredits. It would also probably help if we pointed her to our expansive – and objective! - FAQ on the issue.

One day, we swear to finally chime in on the 33 comments to our Hot Coffee review. We need to respond to those comments that cited our jobs as defense lawyers and claimed that we were advocating tort reform via film review. We promise to give each of those the attention it deserves. We especially need to respond to this reader, who writes:

Remember the victim and take your beating like an adult.

We will finally let him know that the writer was a mere 14 years old and was more concerned with the perils of puberty than passing the New Mexico bar exam when the Liebeck verdict was rendered. As such, he takes no credit for the “beating” that occurred in the courtroom in 1994. Unless, the reader was referring to the fraternal order of defense lawyers in which we all share in each others losses. Once we have a moment, we will let him know.

One day.

One day, we will respond. We really will. We appreciate your comments and encourage the continued dialogue. One day, we engage in these debates. Just not today. Back to work.