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.

News from the Hot Coffee Front: McDonald’s Settles Canadian Lawsuit

In recent weeks, no beverage on earth has been more widely discussed, analyzed, and investigated than hot coffee.  Indeed, it has been the subject of a recent HBO documentary and a point of contention on the many legal blogs that elected to review the film.  Just as the the media frenzy had finally begun to subside, hot coffee litigation is once again back in the news. It never seems to end, does it?

The Toronto Sun recently reported that McDonald’s has settled a claim with a Quebec woman after hot coffee spilled onto her leg back in May.  Reportedly, the woman ordered several cups of coffee from a McDonald’s drive-through.  As the attendant handed her the beverages,  the cardboard carrying tray allegedly buckled, spilling three cups of coffee into her car and onto her person.  Following the spill, she was transported by ambulance to an area hospital for second-degree burns.  She demanded $12,313.24, and the fast food company’s insurer honored the request.

Let’s not get ahead of ourselves and claim this settlement is evidence that McDonald’s serves an unreasonably dangerous product.  There are clearly other factors at play here to explain McDonald’s willingness to expeditiously settle this woman’s claim.  First, there is no real dispute among credible sources that hot coffee can cause burns when spilled onto someone.  Second, after all of the recent bad press, McDonald’s may have an incentive to tidily dispose of such matters. Let’s remember: McDonald’s has taken its share of criticism for refusing to settle medical claims due to hot coffee burns.  Be it right or wrong, McDonald’s needs to temper the potential for any additional bad press.

Finally, this is not your typical Stella Liebeck-style hot coffee case.  The Quebec woman – the potential plaintiff – was not herself the spiller of the coffee.  Not only was the coffee reportedly spilled by a McDonald’s employee, but also, the spilling may have been the result of an apparently dysfunctional carrying tray.  Obviously, the facts are subject to discovery, and there may be a number of unknown factors, but at present, there is no evidence from the Toronto Sun article suggesting the woman played any role in the spill apart from being the victim.  Even if McDonald’s maintained the position, often asserted here at Abnormal Use, that coffee is a beverage meant to be served hot, it still must account for the possible negligence of its own  employee and the reportedly defective tray it chose to carry said beverage.

Nevertheless, this case may be exploited to advance the questionable proposition that hot coffee is, by its nature, unreasonably dangerous and defective.  Let us remember, however, that coffee is meant to be served hot and when it is spilled, it will burn.  That is simply the nature of the product.

Film Review: Brian J. Kelly’s “InJustice” Documentary

Two weeks ago, we here at Abnormal Use offered our review of Plaintiff’s attorney Susan Saladoff‘s anti-tort reform documentary, Hot Coffee, which discussed, in part, the infamous Stella Liebeck McDonald’s hot coffee case.   We were critical of the film, chastising Saladoff for her editorial choices and potential lack of objectivity, particularly in light of her past as a trial lawyer and affiliation with numerous Plaintiff’s lawyers organizations.  Tonight, at 10/9 Central on the ReelzChannel, filmmaker Brian J. Kelly premieres his own documentary and analysis of the courts, InJustice. This project was funded in part by the U.S. Chamber of Commerce, one of Saladoff’s favorite targets in her own film.  Just as we warned you of Saladoff’s possible bias, so too must we advise you that Kelly’s documentary (which excoriates the legal system and the Plaintiff’s bar in particular) may not come from the most objective of sources.  Kelly was kind enough to grant us an interview regarding the film and its agenda.

InJustice purports to offer an in-depth look at the rise and fall of the so-called “kings of torts,” the wealthy and successful Plaintiff’s lawyers like Richard Scruggs, Melvyn Weiss, and William Lerach.  In so doing, Kelly seeks to illustrate the alleged faults of America’s litigation system.  Using interviews with lawyers, InJustice suggests that class-action attorneys have enriched themselves by perpetrating questionable asbestosis, silicosis, tobacco, and securities litigation, while their clients see little, if any, of the spoils.  The film also highlights how these kings of tort made their fortunes outside of the courtroom.  Specifically, the film digs up a quote by Scruggs, who apparently once remarked that the practice of law is a three-legged stool:  legal tactics, political pressure, and public relations.  The men used this hypothetical three-legged stool to perfection, pressuring corporate defendants into settling allegedly baseless claims without ever actually taking the cases to trial.  The men appeared invincible until their questionable tactics backfired on them.  InJustice closes with the story of how each man found himself facing his own judicial woes: judicial bribery (Scruggs), concealing illegal payments to clients (Lerach), and conspiring to improperly pay off plaintiffs (Weiss).

InJustice features interviews with defense lawyers who practiced with Scruggs, Weiss, and Lerach; however, the most compelling interview probably comes from attorney Charles Merkel, Jr., who described Scruggs’ use of the three-legged stool analogy.   Through these interviews, the film aims to demonstrate how well-trained plaintiff’s lawyers can manipulate the system and make millions of dollars without ever seeing the inside of the courtroom.  The story is intriguing and well-told; however, we here at Abnormal Use question whether these so-called kings of tort are a representative sample of the civil litigation system.

Like Hot Coffee before it, InJustice advances an agenda, and Kelly does so well.  Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain.  Certainly, the extrajudicial tactics, coupled with the criminal consequences, of the film’s subjects may leave many viewers believing corporations are often the victims in trumped up class action lawsuits.  However, as noted above, InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.

Unlike Saladoff, Kelly is not a lawyer.  Prior to making his new documentary, he made films about such things as the Blue Angels and the Cuban Missile Crisis. However, just like Saladoff, Kelly uses the documentary medium to promote his own opinions about the faults of the legal system. Like Saladoff before him, Kelly acknowledges that there are two sides to every story.  In an interview with Abnormal Use, Kelly insisted that he “tried to look at the other side that’s not typically covered.”  Unlike Hot Coffee, which Kelly believes is “based on opinion,” Kelly told us that with InJustice, he was looking at “right and wrong.”  In a sense, Kelly is correct – InJustice does focus on fully adjudicated cases and leaves much of the speculation up to the viewers themselves.  However, InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole. In fact, it was Kelly own bad experience with the legal system that prompted his desire to make the film.  In a recent interview, Kelly told The Blog of Legal Times that he decided to pursue the project, in part, due lawsuit filed against him by a prior tenant.  Kelly prevailed in the suit, but only after amassing $80,000 in expenses defending against the plaintiff’s claims.

Not only does Kelly exhibit a potential bias against the legal system due to that suit, so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform.  In our interview , Kelly noted that he initially pitched the film to cable network channels such as the Discovery Channel but received little interest.  A business associate in Washington, DC connected Kelly with the U.S. Chamber of Commerce, which ultimately invested in the project. Kelly insists that he accepted their support only upon the precondition that he would maintain editorial control.  Says Kelly: “We were able to work out a deal where they knew what we were out to do.  They really had to let us go and trust us to do what we set out to do.”  However, in the screener of the film we saw, the U.S. Chamber of Commerce is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and  here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Indeed, we here at Abnormal Use were initially contacted about the film by a Washington, DC consulting firm, Hamilton Place Strategies.  On its website, Hamilton Place bills itself as a bipartisan policy and communications firm, an odd entity to be promoting a television documentary film.  The firm’s public policy advisory unit, HPS Insight, was founded by two alumni of the George W. Bush administration.  Further, that firm’s partners include members of President George W. Bush’s staff and advisers to Senator John McCain and Representative Paul Ryan.  If the firm has any members affiliated with the Democratic Party or more liberal groups, it was not readily apparent on the website.

We’re somewhat troubled by the arrival of two documentaries arriving with weeks of each other both attacking the judicial system from different perspectives. If Hot Coffee and InJustice were screened together, many viewers would probably leave the theater believing that the denizens of our judicial system – from the Plaintiffs lawyers suing corporations to the corporate defendants themselves – are corrupt and dominated by parties only out to protect their own self-interests by whatever means necessary. As officers of the court, we’re not sure that’s the best message to send, nor do we believe that the system is beyond repair (or even as disabled as Saladoff and Kelly contend).  Hot Coffee and InJustice both fail in one key aspect – they focus on exceptions rather than rules.  Saladoff’s selective presentation of the cases in Hot Coffee does not mean that tort reform is unnecessary, nor does Kelly’s highlighting of the ill-advised tactics of Scruggs and Weiss offer proof that all trial lawyers are somehow sinister and corrupt.  The cases presented in these two films are sensationalized exceptions, not the judicial norm.  In the end, though, InJustice is an opinion piece no better or worse than Hot Coffee.

Defense Verdict in Jamie Leigh Jones Case

Yesterday, a federal jury in Houston, Texas rejected Plaintiff Jamie Leigh Jones‘ claims against Halliburton subsidiary KBR that she was raped and fraudulently induced into entering into an employment contract with the company.  See Jones, et al, v. Halliburton Co.,  et al, 4:07-cv-02719 (S.D. Tex.). Jones sought damages against the company in the amount of $145 million, claiming that KBR created a hostile sexual work environment at her barracks in Iraq.

The Houston Chronicle reports:

Jurors in a federal courtroom on Friday rejected a former Conroe woman’s claims that she was drugged and raped by several Kellogg Brown & Root firefighters while working for the company in Iraq in 2005.

The jury also rejected Jamie Leigh Jones’ claims that the former Halliburton subsidiary committed fraud by “inducing her to enter into an employment contract.”

By answering “no” to those two questions, the jurors rendered the other 12 questions in the jury charge moot, bringing an end to the month-long trial of Jones’ lawsuit.

We mention this verdict today because the Jones lawsuit was prominently featured in Susan Saladoff’s recent documentary, Hot Coffee, which we reviewed previously here. Specifically, the film chronicled Jones’ inability to have her claims heard by a jury due a mandatory arbitration clause in her employment contract (although we here at Abnormal Use did not explore the Jones case in our review because our interest in the film was prompted primarily by its discussion of the Stella Liebeck McDonald’s hot coffee case).  In 2009, the Fifth Circuit ruled that Jones did have the right to have her case heard by a jury. See Jones v. Halliburton Co., 583 F.3d 228 (2009).

Abnormal Interviews: Ted Frank of the Center for Class Action Fairness

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to the founder of the Center for Class Action Fairness and an Adjunct Fellow at the Manhattan Institute, Ted Frank. We have cited Mr. Frank often in connection with our work on the Stella Liebeck McDonald’s hot coffee case. He was kind enough to give us his thoughts on that famous case as well as his other projects. The interview is as follows:

1) What do you think is the most significant recent development in torts and product liability litigation?

It goes beyond tort and product-liability litigation to some extent, but the erosion of the preemption doctrine is of some concern. It’s ironic that, even as we see the federal government assert its authority over local affairs in legislation such as PPACA and cases like United States v. Arizona, we’re simultaneously seeing this administration insist that state court juries should exercise dominion over interstate commerce already fully regulated by the federal government. This seems precisely backwards.

2) The Wall Street Journal has a characterized you as a “leading tort reform advocate.” In your view, why is tort reform needed in our system, generally, and in product liability litigation, specifically?

I view tort reform as a means to an end, rather than an end in and of itself. I consider myself a consumer advocate, and it just so happens that the pendulum of the legal system has swung so far in favor of lawyers that consumers are being hurt, and tort reform is needed to restore balance. If ever the pendulum swings too far the other way, you’ll see me switch sides on these debates. As it is, if anyone asks me, I tell them I oppose collateral source reform, which just punishes individuals with the foresight to purchase insurance.

There are so many places where reform is needed. The judiciary and the bar aren’t doing enough to punish or deter fraudulent cases. We have very sensible rules that courts don’t second guess the good faith decisions of lawyers or prosecutors, or the exercise of business judgment by executives, but those rules are thrown out the window when it comes to second guessing the design decisions of engineers or the judgment calls of physicians, though there is every reason to believe that courts are even less likely to get those questions right, especially in hindsight. And uncapped noneconomic or punitive damages introduces an element of complete randomness into the system. Even when the system is considered to be “working,” the majority of the expense of the system goes to paying the administrative costs of the attorneys rather than to the putative victims: we wouldn’t tolerate that level of overhead in any other sector of the public or private economy. All of these features distort incentives, deter innovation, result in unjust punishment of the innocent, and hurt the economy and consumers in the long run.

3) Recently, we here at Abnormal Use have written several pieces regarding the Stella Liebeck hot coffee case in which we have cited some of the articles you have written on the subject. Why have you taken an interest in that litigation, and why is it important to dispel some of the “urban legends” that have arisen?

For twenty years I’ve had an interest in urban legends (I was friends with the Snopeses before there was a, and several of them stem from the legal arena. One of my favorites involves the Baby Ruth bar: it’s a famous trivia answer that the candy bar was named after Grover Cleveland’s daughter, rather than the baseball player Babe Ruth. Snopes and I did some research in the 1990s, and concluded that the “Grover Cleveland’s daughter” story was almost certainly invented for purposes of trademark litigation against Babe Ruth, who had a competing candy bar.

The Stella Liebeck case was exactly the sort of thing that turns into an urban legend, and there are certainly a lot of inaccuracies that crept into the story as it went viral. The Liebeck case got politicized, however: it was an outrageous result and picked up as a poster child for tort reform, and, fascinatingly, the trial lawyer lobby, instead of reasonably saying “Look: the justice system is never going to be 100 percent correct, there have been a dozen hot coffee cases before this one where the courts got it right and threw it out, and you can’t make public policy based on a single anecdote just because the judge made a mistake here” decided to engage in a misinformation campaign to argue that the Liebeck case was both correct and an aspirational result for our tort system – and a disturbing number of law professors joined that cause. If you Google for the case, the vast majority of results are trial-lawyer sites filled with misstatements of the facts and laws. It’s gotten to the point that, in the majority of tort reform debates I participate in, it’s the trial lawyer who is the first to introduce the subject. I’ve been following the case and rebutting the misinformation on both sides since it first made the news, and it just so happens that the majority of misinformation is coming from the plaintiffs’ lawyer side these days. One of these days, I’ll lock myself in a room for a couple of weeks and write a law review article on the subject so there can be a one stop place for truthful information and arguments about the case.

I have a popular talk I give to law schools where I talk about the hot coffee case and a couple of other lawsuits against McDonald’s called “The Law of McDonald’s” and use that as the framework to talk about the two visions of tort law: personal responsibility versus deep pocket compensation of victims, and why I prefer the personal responsibility route.

4) As the founder of the Center for Class Action Fairness, you have sought to protect the interest of consumers in class action settlements. In your opinion, what needs to be done in order to balance the interest of consumers in class action settlements with the need for tort reform?

Assuming that the Supreme Court doesn’t do anything crazy in the Wal-Mart case, the law is, for the most part, in the right place, and it’s just a question of judges exercising their responsibility to apply it correctly – which is hard to do when the settling parties are making an ex parte presentation to the court, and good-faith objectors don’t have the financial incentive to hire a lawyer to make sure the court gets it right. That’s why I do the pro bono representation that I do: someone’s got to do it.

There are certainly some legislative tweaks possible to resolve some ambiguities in the law that class action lawyers have used to benefit themselves at the expense of consumers. I don’t think it’s a tort reform thing; it should be a bipartisan good government thing. Plaintiffs’ lawyers, as a group, should be supporting what I do, because class action lawyers like Milberg and like Kabateck Brown Kellner make them all look bad when they negotiate settlements that don’t do anything for the class but pay the lawyers millions.

BONUS QUESTION: What do you think is the most interesting depiction of products liability and/or class actions in popular culture, and why?

I have a toy figurine of Lionel Hutz on my bookshelf, but his only class action was the consumer fraud case against the makers of the film The Neverending Story. Larry Ribstein’s scholarship on why Hollywood so consistently gets these issues wrong explains why I find this question tough, but I enjoyed the first half of John Grisham’s The King of Torts for its depiction of a corrupt class action settlement that never would have survived Amchem scrutiny. I’m told I should read Gregg Easterbrook’s The Here and Now, which might well supplant Grisham if I ever get around to it. There’s also Michael Clayton, which takes me back to my days as a law-firm associate setting car bombs for adverse witnesses; it amuses me no end in the scene where the lawyer complains that the case had 85,000 documents and 100 motions. The problem with Grisham is that his books repeatedly have a critical plot point where somebody bribes a state court judge to decide a federal removal motion some way, and it just ruins the book for me when the author gets a federal jurisdiction question so wrong. They really should teach 28 USC § 1446 at the Iowa MFA program.

BIOGRAPHY: Ted Frank is an attorney licensed in Illinois, the District of Columbia, and California and a graduate of the the University of Chicago Law School. He served as the first director of the American Enterprise Institute Legal Center for the Public Interest and was an attorney for the McCain-Palin 2008 campaign. He is currently an Adjunct Fellow at the Manhattan Institute and runs the Center for Class Action Fairness, which he founded in 2009. He is a contributor to fellow legal blogs PointOfLaw and Overlawyered. You can follow him on Twitter here.

Hot Coffee: Take Two (In Florida)

We here at Abnormal Use garnered a bit of buzz with our recent comments on Susan Saladoff’s Hot Coffee documentary and the Stella Liebeck litigation. Some of our critics have interpreted our remarks as an attempt to re-litigate that infamous McDonald’s case. Those critics scolded us and purported that “it’s over.” They advised us to simply “move on” and write on other topics. Perhaps those critics were right. Certainly, the details of a 1994 lawsuit must be irrelevant in today’s legal landscape. However, someone forgot to tell Florida’s Cynthia Gamrot.
According to the local ABC news affiliate, Ms. Gamrot recently ordered a cup of coffee at a Chick-Fil-A drive-thru in St. Petersburg, Florida. She allegedly spilled coffee in her lap and sustained second- and third-degree burns after the cup’s lid “popped off.” The coffee was served at a temperature somewhere between 170 and 200 degrees which was reportedly in accordance with Chick-Fil-A corporate policy. As a result, she sued the owner of the St. Petersburg Chick-Fil-A. (The report did not specify the jurisdiction in which the case was filed). Sound familiar?
In response to Ms. Gamrot’s lawsuit, Tampa’s ABC Action News tested the serving temperature of 33 cups of coffee from 10 national restaurant chains – a task reminiscent of law clerk Danny Jarrett’s work in the Liebeck case. The station’s study indicated that the majority of the coffee was served between 150 and 180 degrees. It should be noted, however, that the coffee served in the 150-degree temperature range came primarily from Arby’s and Wendy’s – two restaurants that do not serve breakfast and are not historically known for their coffee. Starbucks, Dunkin Donuts, Krispy Kreme, and McDonalds all tested in the 168 to 180 degree range.
Back in 1994, Plaintiff’s expert Dr. Charles Baxter opined during the Liebeck trial that the optimal temperature to serve coffee was between 155 and 160 degrees. Defense expert Dr. Turner Osler indicated that coffee served at a temperature as low as 130 degrees could result in burns similar to those sustained by Ms. Liebeck. Further, Reed Morgan, Ms. Liebeck’s counsel, theorized that any coffee served over 140 degrees was “unreasonably dangerous.” If this testimony from the Liebeck trial is true, why do top fast food chains continue to serve an allegedly “dangerous product?” Either restaurants have a diabolical agenda to harm their patrons or they have recognized that people enjoy their coffee piping hot.
The ABC affiliate’s study demonstrates that the Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee. Further, it reveals that the conduct of McDonald’s in the early 1990s conformed to industry standards – both then and now. Critics of the restaurant chain – and those who attempt to use the Liebeck case to advance the agenda of the Plaintiffs’ bar – simply fail to acknowledge the fact that coffee, by its very nature, is meant to be served hot. No one wants to consume a lukewarm cup of sub-140 degree coffee. Restaurants recognize this fact, as do consumers of coffee. Why can’t the trial bar? If Mr. Morgan honestly believes that any coffee served at a temperature greater than 140 degrees is “unreasonably dangerous,” then he essentially argues that coffee should be taken off of restaurant menus. Starbucks did not become a morning staple because of its iced coffee selections.
In no way are we here at Abnormal Use intending to trivialize the injuries of coffee burn victims.
No one is disputing the severity of Ms. Liebeck or Ms. Gamrot’s burns. We do, however, question the need for attributing liability for those burns to the producer or seller of the coffee. There is no evidence that either Ms. Liebeck or Ms. Gamrot expressed any concerns with their fast food-produced coffee prior to their accidents. In fact, we imagine they probably enjoyed the hot product, which is why they ordered it in the first place. They might have even complained had they been served coffee cooler than the industry standard temperature. Simply put, hot coffee does not become “unreasonably dangerous” until it is negligently spilled by the consumer.

An Open Letter to "Joe Consumer" of The Pop Tort blog

Dear Mr. Joe Consumer,

As relatively new legal bloggers, we can attest that few things bring as much gratification as the acknowledgment that our work is being read by our distinguished colleagues. Imagine our excitement here at Abnormal Use upon learning that you, a contributor to The Pop Tort legal blog, not only read last week’s Hot Coffee post, but took time away from your fight against dirty corporate disinformation campaigns to write your own retort. As you may know, we were pleased to present some basic background facts regarding the new Hot Coffee documentary and the ties of its producer Susan Saladoff to the Plaintiffs’ bar. We’re elated to engage in further dialogue about the film and the issues it presents with you, a writer at blog we’ve read for years. We think that additional discussion on the film, and the infamous Stella Liebeck McDonald’s hot coffee litigation, is truly a boon to public discourse. So, today, we write this thank you note.

Thank you, Mr. Consumer. We owe you much, for your reply provided us with an opportunity to engage in a bit of soul searching and introspection. In the circles in which you travel, you may have heard the vicious rumors that we defense attorneys are soulless, but this is simply not true.

So, thank you for pointing out our corporate bias. We suspect that The Pop Tort, a project of the Center for Justice and Democracy, would never attempt to inject its own ideological agenda into its film commentary – especially a film in which its founder and executive director appeared.

Thank you also for alerting the blogosphere that we have not yet seen the Hot Coffee documentary. We agree that the plainly evident disclaimer of that fact we placed in our original piece may not have been apparent to readers. Despite the fact that we made no representations that we saw the film, it is easy to see how our readers would think we were presenting an actual review of the documentary and not a commentary on the filmmaking team’s potential agenda.

Thank you also for citing to actual Hot Coffee reviews from more “responsible” film critics. Fortunately, you located non-lawyer reviewers untainted by a legal education and the perils of the legal profession. By mentioning only the fact that the filmmaker is an attorney (and omitting any reference to her long career suing large corporations), these reviewers offered truly objective reviews based on the facts as told by Saladoff without referencing other pesky info and context.

Thank you also for halting our “dirty corporate disinformation.” Shame on us for presenting the information in our accompanying FAQ file taken directly from such unreliable sources as pleadings, deposition transcripts, and contemporary news accounts of the case. Shame on us for giving anyone the impression that coffee is best served at McDonald’s temperatures. Shame on us for becoming so caught up in the facts that we neglected to see your truth. After all, as the old writer once said, “[f]acts and truth really don’t have much to do with each other.”

Thank you for putting a stop to our attempt to relitigate the original Stella Liebeck lawsuit. Apparently, we momentarily forgot the well-established principle that once a court or jury renders its decision, all criticism must end. We momentarily forgot that no one wants to hear the losers “whining” about how the case should have been decided. Certainly, our friends at The Pop Tort would never commit such a horrible offense. The winners win the day, and they must be protected from those looking to revise history. Please forgive us this transgression.

Most of all, in light of our errors in judgment, we appreciate that you did not mention our blog’s name or our writer Nick Farr’s name in your post. We would hate for our reputations to be further sullied by last week’s abomination. If only the etiquette of the blogosphere would allow us to remove our original post from the Internet permanently! We remain crestfallen.

Finally, Mr. “Joe Consumer,” we must commend you on your own staid personal transparency and straight-forward, no-nonsense approach to legal commentary. You are an example to us all.


Abnormal Use