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.

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.”

“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).

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.

We here at Abnormal Use have been doing this blogging thing for about two years now, and we still love it.  One thing we love in particular are comments from our dear readers.  Without you, we would not enjoy this enterprise nearly as much (and, without you, of course, there would be no reason to do it).  We also enjoy good-natured debates with those with whom we disagree.  One of our fondest memories from our college days is getting together with intelligent people with differing views and backgrounds and debating the issues of the day, whether they be political, legal, or social.  You can learn something when you engage in constructive debate with someone who disagrees with you.

Certainly, one of our frequent topics of discussion is the infamous and controversial Stella Liebeck McDonald’s Hot Coffee case.  Our posts on that topic have generated much debate.  Our review of Plaintiff’s attorney Susan Saladoff’s Hot Coffee documentary earned 30 comments, while our initial preview of the film and highlighting of Ms. Saladoff’s background as a trial lawyer received 25 comments.  Our objective FAQ file, which we assembled using the original pleadings, motions, and contemporary news coverage of the case, drew seven comments.  Even the post we authored calling for Ms. Liebeck’s attorney Reed Morgan produce the trial transcript of the case merited 11 comments.

And there’s more.  Even though some of these posts are months old, or even a year old, they continue to receive comments to this day.  Even our post commenting upon Ms. Saladoff’s appearance on “The Colbert Report” still gets a comment or two months later.  One such comment to that post, submitted by a Houston lawyer in late January, is as follows:

I’m amazed at the extent to which your law firm, years later, continues to cheer for a team that lost at the expense of public faith in a justice system that worked — whether you agree that it worked, or whether it serves you in particular, or not. There are salient facts on both sides of this issue. Yes, the coffee was very hot. Yes, she sat in it for 90 seconds. Yes, people should know coffee is hot. And yet, McDonald’s knew its coffee was dangerously hot and callously treated the risk to Ms. Liebeck as a mere cost of business. All of this evidence was heard by the factfinders, the jury. What matters now is that the factfinders heard the evidence — from both sides — and made a decision based on the evidence and the law it was charged to apply. As a member of the bar who has taken the same oath that (I presume) the attorneys in your firm have also taken, I think your continued biased commentary is irresponsible. I’m not saying that you don’t have a constitutional right to say it (questions regarding attorney ethics rules notwithstanding); you probably do. But I think you’re doing more harm than good to our legal system by doing so, and it’s ethically and morally irresponsible to continue to cry about how this jury was wrong and our system is broken simply because they dared to conclude differently than you would have them conclude. I would expect your biased editorialism from a college newspaper, not accomplished members of the bar.

Gee whiz.  For one, if every jury verdict is sacrosanct and immune from criticism of any kind, that’s going to put a lot of appellate lawyers out of business. Sure, we expect criticism and disagreement; that’s part of putting ourselves out there in the legal blogosphere. But our analysis and commentary on an infamous jury verdict is “irresponsible”?   Possibly unethical? Really? Can we no longer analyze and have some fun re-litigating a case which appears to have been misrepresented in the media by those from varying backgrounds, and before our acquisition of the pleadings and motions, discussed for years without reference to the original underlying documents? It’s harmful to our legal system to look back at reevaluate some of the decisions made by the lawyers, the trial court, and the jurors and gauge whether they were right or wrong? Must we consider those jurors infallible?

Sigh. I guess that’s what we get for engaging in this blogging thing. (And by the way, “biased editorialism”? Is there any other kind?)

Or, maybe we just hit a nerve and our making some points that those who have a vested financial interest in the jackpot justice system would prefer that we not make.

One year ago today on January 25, 2011, we first published our Stella Liebeck McDonald’s Hot Coffee Case FAQ post.  We are still proud of that piece, which we intended to serve as an objective accounting of the case using only the primary sources, pleadings, motions, and other court documents, as well as some contemporary media coverage of the case from 1994.  It is by far one of our most popular posts, and we suspect that it led to later citations in The New York Times and NPR. We have written a lot about that case since then, and we hate to dwell, so we would just direct your attention back to the FAQ file once more today, its birthday.

Coincidentally, in 2011, the Liebeck case reemerged in the mainstream media as a talking point, primarily due to the release of Plaintiff’s attorney Susan Saladoff’s would-be documentary, “Hot Coffee.” Apparently ignoring our objective accounting of the case, some have continued to promote the myth that McDonald’s serves an unreasonably dangerous product. Just this week, The Pop Tort blog set out on a campaign to highjack a McDonald’s Twitter promotion. The blog has encouraged its readers to utilize the company’s #McDStories hashtag to spread the word that “seriously injuring customers and then viciously fighting them in court . . .” is wrong. Or, in the alternative, you can tweet about meeting your spouse over a honey mustard dipped McNugget.

Of course, we are all entitled to our opinions. We just hope our FAQ file has helped provide you with some basis for them – whatever they may be.

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.