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.

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:

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).

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 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.

Another Note on Civility – Legal Blogging Edition

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: The Stella Liebeck McDonald’s Hot Coffee FAQ

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.

Thoughts on “Hot Coffee” Director Susan Saladoff’s Appearance on “The Colbert Report”

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.

Susan Saladoff, “Hot Coffee” Director, on “The Colbert Report” Tonight

Tonight, plaintiff’s attorney and documentary filmmaker Susan Saladoff will appear on “The Colbert Report” on Comedy Central, which airs at 11:30 p.m. Eastern and 10:30 p.m. Central. Presumably, she’ll be promoting the imminent DVD release of her “Hot Coffee” documentary and sharing her objections to tort reform. You might recall – because we mention it quite frequently – that we have more than a passing interest in the Stella Liebeck McDonald’s Hot Coffee Case and Ms. Saladoff’s documentary on same.  Not only did we review Saladoff’s “Hot Coffee” documentary when it aired on HBO this past summer, we also chronicled Ms. Saladoff’s background as a prominent plaintiff’s attorney back in January when the documentary premiered at the Sundance Film Festival.  We look forward to seeing her on “The Colbert Report” tonight and seeing what she has to say about tort reform generally and the Liebeck case specifically.  We are particularly interested to see how the character Stephen Colbert plays on his show will grill Ms. Saladoff on her opinions and litigious background.  Rest assured that our writer Nick Farr is on the case and will be burning the midnight oil tonight to offer his commentary to you first thing tomorrow.  Because Comedy Central typically posts these interviews online shortly after their original air date, we will also try to embed or otherwise link the video so you can watch it yourself. We are looking forward to it and will keep you posted. (Hat Tip: Albuquerque Journal).

Abnormal Use Presents Live Webinar on McDonald’s Hot Coffee Case

For nearly 20 years, the story of the New Mexico woman awarded millions of dollars after burning herself with McDonald’s hot coffee has been a fixture of litigation lore.  To many, the case is an example of the need for tort reform.  To others, it represents a success of our tort system.  But what really happened in the Stella Liebeck McDonald’s hot coffee case?  Why has one cup of coffee prompted so much discussion of our litigation system? Well, guess what? You can now learn the answers to those questions from us – on a brand new live CLE webinar tomorrow!

As you know, we here at Abnormal Use have written extensively on the McDonald’s hot coffee case.  We have presented you with an extensive FAQ file on the litigation.  We have offered our review of Susan Saladoff’s recent Hot Coffee documentary.  We continue to keep you apprised of news on the hot coffee litigation front.  Our work on this subject has been cited by both NPR and The New York Times.  Now, dear readers, we are pleased to announce that Abnormal Use is set to give you hot coffee news like you have never seen it before – live over the interwebs!

So, here is your chance to finally interact with us in real time on this controversial topic! Tomorrow, on Thursday, October 20, 2011, we will present an online CLE webinar on the Stella Liebeck McDonald’s Hot Coffee case.   Due to the amount of comments on our hot coffee posts, we know you would relish the opportunity to hear our presentation and pepper us with your comments and questions.

The webcast – sponsored by Thomson Reuters – will be conducted tomorrow from 10:30 am – 11:30 am (EST) and has been approved for CLE credit in about 40 states.  You can sign-up here.  The cost of the CLE is a mere $135, and participants will be provided with course materials (prepared by your friends at Abnormal Use), an hour-long audio presentation, and the opportunity to submit questions to us during the webinar.

Some familiar names from Abnormal Use will be presenting, including Nick Farr and our editor, Jim Dedman. To show that this webcast is kind of a big deal, we have also called in Gallivan, White, & Boyd, P.A. senior partner Howard Boyd to offer his wisdom on the subject matter.

We hope you’ll be able to join us tomorrow. If you can’t make it, you can always listen to the presentation – and earn CLE credit – later by accessing the presentation in the Thomson Reuters/West Legal Education webinar archive at your convenience.

You can access all the information about the webinar here.

Statutory Construction: What is a “Documentary” Film?

As lawyers, we are prickly curmudgeons with respect to definitions, and all of the talk this year about documentary filmmaking prompted much disdain on our part over the use of the term “documentary.”  That word suggests some type of objectivity; Merriam-Webster’s online dictionary uses words like “factual” and “objective” in its definition.  A documentary filmmaker takes his or her camera to the scene of a series of events or profiles a particular person or persons and provides the most objective view of the subject of the film.   A documentary film is successful, we think, when both the subject of the film and those who are critical of the film’s subject matter agree that it is an accurate representation.  Thus, that factual and objective depiction – complete with the proper context – can prompt serious debate and discussion about the events depicted without falling victim to cries of bias, improper editing, or other editorial tricks of the trade.  But that’s not what documentaries do these days.  Just this year, we’ve written about would-be documentaries by Plaintiff’s lawyers advancing a litigious agenda (that being Susan Saladoff’s Hot Coffee) and disgruntled former litigants making films advocating tort reform (that being Brian J. Kelly’s InJustice.). These are filmmakers with agendas; they seek to convince viewers of a point and call them to action.

These are not documentarians; they are editorialists. There is, of course, a place in film for subjective editorializing, just as there is a place in a newspaper for an editorial and op-ed page. Heck, we here at Abnormal Use engage in editorializing every day and would not purport to be objective reporters of fact (unless we tried really, really hard to do so and specifically made that claim).  However, we do not generally bill ourselves as reporters or documentarians, and thus, we free ourselves of the constraints of journalistic objectivity.

We think that Saladoff, the former trial lawyer and producer of Hot Coffee, and Kelly, the former litigant and maker of InJustice – are editorialists.  They admit that they have an agenda, and they concede that they are trying to change people’s minds by showing them things they may not have seen before.  Their films are the work of advocates.  Thus, the term “documentary” is misleading when applied to their films, especially in light of  Saladoff’s representation that she is offering “the truth behind the McDonald’s case.”  Saladoff is a plaintiff’s lawyer with an agenda who has turned film maker; Kelly is a citizen who had an unpleasant encounter with the legal system who has a Washington PR firm with Bush administration alumni promoting his film effort. There’s nothing wrong with their decisions to make films to express their opinions about the American civil justice system; it’s just wrong to call them documentaries.

We suspect there would be similar charges of bias if we here at Abnormal Use produced a documentary on the merits of tort reform – the first complaint we would expect to hear would be that defense lawyers at a large southeastern civil litigation firm were attempting to change the minds of potential jurors.  (Kelly faced similar criticism with InJustice, and in fact, those charges of “bias” were leveled against us when we criticized Saladoff’s film). Similarly, we pointed out the potential bias of Saladoff, whose Facebook page explicitly requests viewers to “take action” and write letters to the editor to advance the film’s mission. (We’ve included in this post a few screencaps from the Hot Coffee official Facebook page indicating how the documentary’s producers are calling for actions by viewers – not something you typically see from an objective reporter of facts).  Take a look:

We suppose there is some point where the public is aware that what is presented as a “documentary” is not, in fact, an objective narrative.  Michael Moore became know for such films as Roger & Me, Bowling for Columbine, and Fahrenheit 911, all of which were documentaries, in the sense that they were not narrative fiction, although they certainly had an editorial agenda not implied by the use of the term “documentary.”  There’s always a conservative would-be documentary popping up in response to Moore’s films, as well, but again, those too have agendas. Whatever the case, when the public learns of a new Moore film, they are not expecting an objective documentary. But when an unknown filmmaker like Saladoff or Kelly appears on the scene purporting to expose truth, we must be mindful of the term.

Incidentally, and perhaps ironically, we did attempt to make one objective piece of reporting on this very case.  Please direct your browser to our “Stella Liebeck McDonald’s Hot Coffee Case FAQ” for an editorial–free question and answer session about the underlying facts of the infamous hot coffee case, the trial thereof, and the post trial developments.  We thought it might be helpful if there was at least one place on the Internet where there was an objective retelling of that case using only the original documents from the trial and early 1990’s media coverage thereof.  If you want to learn the facts of the case, that is a good place to go.


Hot Coffee: The Drink That Keeps On Giving

Over the past year, we here at Abnormal Use have often written on hot coffee litigation lore.  We have provided you with a comprehensive FAQ file on the famous Stella Liebeck McDonald’s hot coffee case.  We have offered our critique of Susan Saladoff’s recent documentary on the subject.  We have even tried to keep you up-to-date on hot coffee cases around the country.  Why?  With each new case, we can present a new twist on the ridiculousness that is the “unreasonably dangerous” beverage.  Enter exhibits #1,234 and #1,235.

Last week, news broke of litigation in New York and California involving spilled coffee.  In California, a man ordered a Big Mac and two coffees at a McDonald’s drive-thru in Huntington Beach California.  He claimed that a McDonald’s employee dumped “scalding” coffee into his lap, causing him to suffer first- and second-degree burns.  In his lawsuit filed in the Orange County Superior Court, the man now alleges that McDonald’s served coffee at “extremely unsafe” temperatures and used defective cup lids.  He is seeking more than $25,000 in damages.  The report was silent as to any further details.

In New York, a 10-year old girl was awarded $600,000 by a special referee for past and future pain and suffering after she too was burned with hot coffee.  The girl was a guest at a Sweet 16 birthday party when she came into contact with the electrical cord of a 40-cup commercial coffee urn.  Her contact with the cord caused the urn to overturn, spilling coffee onto unspecified parts of her body.  As a result, she suffered second- and third-degree burns and was hospitalized for ten days.  Her mother sued Mastrantonio Catering, Inc. in a New York state court.  After Mastrantonio failed to file a timely answer, the plaintiff moved for a default judgment.  The motion was intially denied, but later reversed and granted by a New York appellate court.

What can we learn here?  Hot coffee litigation spans from coast-to-coast.  Some may argue that the continued expansion of hot coffee cases is evidence that the beverage is unreasonably dangerous.  Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief.  McDonald’s, as well as anyone, is familiar with these lawsuits.  Catering companies certainly recognize the need to serve products suitable to their customers.  Despite the threat of litigation, people will continue to demand that their coffee be served hot.

In the California case, the McDonald’s employee allegedly spilled the coffee onto the plaintiff.  It wasn’t that the coffee itself was unreasonably dangerous and defective; rather, the allegation is that an employee negligently spilled hot coffee onto the customer.  In the New York case, the plaintiff was awarded $600,000 after Mastrantonio went into default.  The plaintiff’s motion for default judgment was granted, not because Mastrantonio failed to present a meritorious defense, but rather, because it failed to demonstrate a justifiable excuse for its default.  Once the issue of liability was decided, the special referee was left to determine the extent of the injuries themselves.  Liability was never at issue.  We have never disputed the extent of hot coffee burns in these cases.  Rather, we fail to understand how a maker of coffee can be held liable for preparing and serving a beverage in its expected form.

These cases have one common theme – coffee is hot and can cause burns when spilled.   Some may find these cases ripe for litigation while others feel they have no place in our courtrooms.  Its all a matter of perspective.  You obviously know our perspective.  If you want to read a well-written counter-proposal from a different perspective, check out this piece from Christopher Pascale at Suite 101.