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.

For better or worse, the infamous Stella Liebeck McDonald’s hot coffee case filtered through our legal system and staked its claim in the mainstream media. Despite the fanfare surrounding that case, few know all the in’s and out’s of the case from either the plaintiff’s or the defendant’s perspective. Perhaps playing on the ignorance of the general populace, supporters of both tort reform and social justice movements have used the case as propaganda to support their causes. We suppose there is no harm done in using the case as a means of persuading the public. But what would happen if the case was used to sway a jury? Looking deep into the legal vault, the Utah Supreme Court gives us its answer to the question.

In Boyle v. Christensen, 251 P.3d 810 (Utah 2011), the plaintiff was injured when struck by a truck while walking in a crosswalk.  After the defendant truck driver admitted liability, the case proceeded to trial on the issue of damages.  During closing arguments, counsel for the defendant responded to the plaintiff’s request for damages as a result of pain and suffering with the following:

Ladies and gentlemen, they want a lot of money for this. A lot of money. What’s been written on the board is called a per diem analysis…. How many days has it been since the accident? How many days for the rest of his life. And how much per day is that worth? That’s what’s been done here. That’s how we get verdicts like in the McDonald’s case with a cup of coffee.

Whoa!  Did that come out of nowhere?  Plaintiff’s counsel sure thought so, immediately objecting to the reference as prejudicial and not in evidence.  The objection was overruled, and the jury returned a verdict of $62,500, about one-seventh of that sought by the plaintiff.  Not satisfied with the result and the reference to the infamous hot coffee case, the plaintiff appealed.

After the Court of Appeals affirmed the judgment, the Utah Supreme Court reversed and remanded the case to the trial court.  In finding that the reference to the McDonald’s hot coffee case was improper, the Court discussed at-length the general public ignorance of the facts of the McDonald’s case and recited the standard pro-Liebeck talking points (i.e. coffee measured 180-190 degrees, McDonald’s received 700 previous complaints, etc.).  Given this perceived ignorance, the Court stated:

Given the uniquely iconic nature of this case, the passion it has produced in the media, and the general misunderstanding of the totality of its facts and reasoning among the public, we find it hard to imagine a scenario where it would be proper for a party’s counsel to refer to it before a jury. Generally, as here, such a reference would seem to have the sole purpose of recalling the public outrage over isolated elements of the case—thus improperly appealing to a jury’s passions. It is not the jury’s job to make legal determinations, so no legal arguments from the case are relevant. The facts in the McDonald’s coffee case were not in evidence before this jury and were also utterly irrelevant. Indeed, the one attempt counsel made to make her reference seem relevant was a misrepresentation because the high punitive damages award in the McDonald’s coffee case had nothing to do with a per diem analysis. It is certainly unfair to require the other party to clarify all the misconceptions about this irrelevant case in the limited time allotted for closing argument. The great latitude provided in closing arguments regards reasonable inferences about evidence properly before the jury and does not extend to misrepresentations or efforts to appeal to a jury’s passions. Thus the reference to the McDonald’s coffee case in closing argument was improper.

While we may disagree with some of the Court’s talking points, we have to agree that the reference to the McDonald’s case was improper in this context.  The jury should be deciding the case based on the facts at hand and not based on whatever misconceptions they may have about another case tried in another jurisdiction years before.  Interestingly, it appears that defense counsel may have been equally ignorant of the facts of the McDonald’s case as those sitting in the jury box.  As the Court correctly noted, the high punitive damages awarded in the McDonald’s case were based on two days of coffee sales and not the per diem analysis used to calculate pain and suffering to which he was arguing.

There is nothing wrong with continuing to discuss the McDonald’s case.  We do it a lot here at Abnormal Use.  However, we should keep it in its proper context and out of the courtroom.

And, for good measure, let’s try to know the facts before bringing the case up in public.

(Hat Tip: Eric Nordstrom).

As you know, we here at Abnormal Use like to write about the infamous McDonald’s hot coffee case. Twenty years after it was tried, it remains an interesting piece of litigation, not just because of the facts and its effect on the litigation culture, but also because there are so few primary sources available to the general public. We have a number of secondary and tertiary sources in the form of editorial opinion columns, television documentaries, and the like. However, few commentators rely upon the actual pleadings, motions, and witness testimony in the underlying case. That is why in early, early 2011, we prepared a FAQ file based on some primary sources available to us at that time.

Back in 2011, we were scouring the Earth for a copy of the 1994 trial transcript. It was, of course, unavailable from the court itself, as trial transcripts are not typically filed with the clerk of court (and we doubt that the court reporter would have a 17 year old trial transcript available for order). The case was settled shortly after the trial, so any appellate record would be slight, if existent at all.

Accordingly, on June 28, 2011, we issued a challenge to Reed Morgan, the McDonald’s hot coffee Plaintiff’s attorney, asking him to release the trial transcript (assuming he still had it after all of these years).

You can read that post here. In it, we noted as follows:

 The only parties with access to all relevant information are the McDonald’s corporation and Liebeck’s estate. Despite the protestations of the plaintiff’s bar and Saladoff, the McDonald’s corporation has remained curiously tight-lipped about the case over the past 17 years. There’s no evidence that this major company has engaged in any public relations campaign; and if they had, it has not been very successful, as many people are unaware of the basic facts of the case.

If the plaintiff’s bar truly wishes to expose the “truth” behind the case, then they should look to one of their own: S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas, the lead plaintiff’s attorney who represented Liebeck during the original trial. Presumably, Morgan has a whole host of original material which could shed additional light on the case but which are not currently in the public record. By this, of course, we refer to deposition transcripts, discovery responses, and the trial transcript, none of which is readily available in any form. Allowing the general public, as well as legal scholars and researchers, to review this material would shed much light on the case and allow partisans of any persuasion to use the actual evidence from the actual trial to advance their agendas. (Saladoff had access to at least some of this material, although it’s unclear from whom she obtained it; she told IndieWire that she “was able to secure the transcript of the trial, and then went to Albuquerque where the case was tried, located the family, the lawyers, jurors, the doctor, and started talking to as many people as possible who would talk to me.”)

We never heard from Mr. Morgan in response to the post. Perhaps he never saw it, and we doubt a defense oriented law blog is atop the list of his concerns. To be honest, all these years later, the post had sunk into the deep recesses of our memory until last week when we saw that Mr. Morgan himself had commented on the post. Last Wednesday, almost three years to the day after our original blog post on the issue ran, he post a comment and remarked:

The trial transcript is on record at the court. Any competent lawyer knows this. So I question this so-called “challenge” as written to serve any purpose other than to create an image that I have the transcript. Of course, I do not have it. Reed Morgan

We were very pleased to see that he had read our post all these years later. The following day, we responded to the comment as follows:

Reed, we appreciate your comment and thank you for visiting our site. Over the years (and again, more recently), we have reviewed the documents available from the Civil Division of the Bernalillo County Courthouse where the case was tried in 1994. In fact, the Civil Division maintains a file of 1,070 pages comprised of the pleadings, motions, and other publicly filed documents. Unfortunately, the trial transcript is not one of the documents publicly on file or available for ordering from the court. I suspect that it might have been easier to locate or obtain in 1994, but not in 2011 (when the post to which you were responding was written and published).

In fact, anyone can visit the relevant New Mexico state court website and access its online docketing system. The official website of the State of New Mexico Second Judicial District Court maintains a case look-up function which one can utilize to see the full docket sheet for the Liebeck v. McDonald’s matter. The relevant entry offers a comprehensive accounting of the case, listing all of the hearings that took place in 1993 and 1994 as well as a description of the civil complaint and a register of actions activity ranging from the filing of the complaint on March 12, 1993 all the way to March 28, 2007 (reflecting the ultimate fate of certain exhibits). The bulk of the entries, however, range from 1993 to 1995.

Generally, a trial transcript is not something that one can obtain directly from the trial court by pulling the pleadings on file. Sometimes, when a case is appealed, one might be able to obtain the trial transcript from an appellate court (if the transcript has been requested from the court reporter), but an appeal was not meaningfully pursued in Liebeck because the case resolved in late 1994 just a few months after the verdict. Trust us when we say that in 2011 we looked many, many places to obtain a copy of the trial transcript before issuing our challenge to Reed Morgan. We are elated that he ultimately replied, although all these years later, we are no longer looking for a copy.

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.  Recently, his piece, “Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case,” was published by DRI Today. Although the case is often discussed as one involving Ms. Liebeck’s potential contributory negligence (or lack thereof, depending upon your perspective), the article focuses on the case and the specific products liability claims asserted therein. Here’s the first two paragraphs of the article:

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

In recent years, the trial lawyers, initially put on the defensive by the verdict and its ensuing publicity, have attempted to rehabilitate the reputation of the case, using the severity of Ms. Liebeck’s physical injuries as evidence of the lawsuit’s purported merit. Two years ago, trial lawyer turned filmmaker Susan Saladoff released Hot Coffee, an editorial documentary using the Liebeck case, and other cases of note, as examples of the purported evils of tort reform. To some degree, the success of the documentary, and the editorial coverage thereof, has prompted the public to rethink some of the issues of this case.  In said documentary, Saladoff stressed the McDonald’s policy of serving 180 to 190 degree coffee which, when spilled, could result in second and third degree burns like those Liebeck sustained more than two decades ago. However, reviewing the basic facts of the case and the legal issues in play, it is apparent, even two decades later, that the Liebeck case was questionable at best, frivolous at worst.

For the rest of the article, please see here.

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.

 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.

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.

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.

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.

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.”

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.