Revolutionary Hot Coffee Lawsuits Filed in California

According to a report from ABC-30 (Fresno, CA), two Fresno women have recently filed suit against McDonald’s alleging that they sustained burns caused by hot coffee. There is nothing unique or interesting about two new hot coffee suits as they have been commonplace in the 20+ years since the infamous jury verdict in Liebeck v. McDonald’s. What is interesting, however, is that Plaintiffs’ counsel and ABC-30 seem to think they made some newfound discovery as to the reason these suits keep popping up. As reported by ABC-30:

Wagner says hotter coffee stays fresh longer, so McDonald’s usually chooses to keep it too hot — saving more than $1 million a day at franchises across the country. Legal analyst Jeff Hammerschmidt says that savings may be more valuable than customer safety. ‘It appears McDonald’s has made a business decision to sell the coffee hotter to be able to make more profit and they continue to make more profit even if they’re paying settlements,” he said.

In other words, McDonald’s serves hot coffee because it is good for business. Talk about a newsflash.

We jest at this recent epiphany about the association between hot coffee and higher profits, but the argument is clearly nothing new. The argument was pivotal in the Liebeck  trial and the jury based its $2.7 million punitive damages award on McDonald’s two day revenue from hot coffee sales. In any event, this “corporate greed” theory ignores the simple point made here at Abnormal Use many times – coffee is served hot because people like it that way. In discussing a hot coffee suit filed against Chick-Fil-A back in 2011, we had this to say about the hot coffee-sales comparison:

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.

Does McDonald’s serve hot coffee because it is concerned about its bottom line?  Sure, it does, but what business doesn’t act in ways to maximize profits?  McDonald’s, Starbucks, or any other coffee-selling establishment serves coffee hot because the consumer demands it.  And, for this reason, we have questioned whether coffee can be construed as “unreasonably dangerous” in most situations.

On an interesting note, ABC-30 measured the serving temperature at the McDonald’s at issue in the recent lawsuits and found the temperature to be 153 degrees – less than the optimal serving temperature prescribed by the plaintiff’s expert in the Liebeck case. The coffee in ABC-30‘s break room? It was served at 167.5 degrees.

Friday Links


So this weekend is Valentine’s Day. Yikes. We’re not quite certain what to say about that dilemma. However, above, you’ll find the cover of A Year Of Marvels: February Infinite Comic #1, published this very week! Why is Spider-Man carrying a box of chocolates as he fights the Vulture? That seems imprudent.

According to the film Ghostbusters II, the world will end this Sunday, February 14, 2016. Click here for the scene in question.

Our legal tweet of the week is self explanatory:

Report Finds that Facebook’s Privacy Policy Breaches European Law


We frequently post on social media issues, including issues pertaining to Facebook. As we recently reported, an article authored by our editor, Jim Dedman, was recently published in the January 2016 edition of The Inside Scoop, the newsletter of the North Carolina Bar Association’s Corporate Counsel section.

But we’ve got more news on this front.

Facebook is apparently in the news again for legal reasons following “[a] report commissioned by the Belgian privacy commission [that] as found that Facebook is acting in violation of European law, despite updating its privacy policy.” The study at issue was conducted by the Centre of Interdisciplinary Law and ICT at the University of Leuven in Belgium. The report “claimed that Facebook’s privacy policy update in January had only expanded older policy and practices, and found that it still violates European consumer protection law.” Specifically, a number of provisions in the new privacy policy still fail to comply with the Unfair Contract Terms Directive in a number of ways, including but not limited to:

  • Placing too much burden on Facebook users to navigate Facebook’s “complex web of settings in search of potential opt-outs”
  • Providing no mechanism by which users can stop Facebook from collecting location information on users via its smartphone app besides stopping location access on the phone via the mobile operating system
  • Offering no choice regarding the user’s appearance in “sponsored stories” or sharing of data pertaining to location.

Facebook has apparently met with Bart Tommelein, the Belgian privacy minister, to discuss the issues raised in the report, and to convey its position that its new privacy policy does not violate any laws.  Facebook is supposedly being investigated by various other European nations for various privacy infractions as well.

The Ethics of Social Media Research

As you know, we here at Abnormal Use enjoy writing at other publications, as well, and this week is no different. Our editor, Jim Dedman, has penned a piece called “The Ethics of Social Media Research,” which was recently published in the January 2016 edition of The Inside Scoop, the newsletter of the North Carolina Bar Association’s Corporate Counsel section. Here’s the first paragraph for you:

Lawyers now find themselves well into the era of social media discovery. Time was, Internet evidence was a novelty, and courts eyed such issues with wonder and skepticism. Cf. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999) (“[A]ny evidence procured off the Internet is adequate for almost nothing . . . .”). These days, these inquiries are routine. Accordingly, corporate counsel should be aware of the ethical principles governing social media research in litigation (whether they be conducting such  research internally or relying on outside counsel to do so).

First and foremost, lawyers must familiarize themselves with legal technology issues. Generally, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA Model Rule of Prof’l Conduct 1.1, cmt. In fact, North Carolina has applied this requirement to social media specifically, noting that “[c]ompetent representation includes knowledge of social media . . . .”  See NC 2014 Formal Ethics Opinion 5.

You can read the full article here.

Reflections on the Super Bowl

Super Bowl 50 has come and gone, here are a few takeaways from the Abnormal Use sports department.

It wasn’t a boring game, it was just unappreciated. There are countless news articles and commentaries calling Super Bowl 50 “boring” or “underwhelming.” But spectators and fans of the game should have appreciated the dominate performance of Von Miller and the rest of the Denver Broncos’ defensive line. Denver won in the trenches and that was the difference in the game. Seeing Demarcus Ware wreaking havoc in the backfield and the rest of Denver’s defensive line constantly getting pressure on one of the most elusive quarterbacks in the NFL was quite a sight. Hats off to Denver’s defense

Peyton Manning was unquestionably one of the greatest QBs of all time. Peyton Manning is the winningest QB of all time with 200 career wins. He is also the first QB to win Super Bowls with two different teams (as the starting QB). He holds the record for career passing touchdowns, single season touchdowns, passing yards in a single season, and a host of other accolades. Now it is time to retire. I love the “Sheriff” and have the utmost respect for his impact on the game, but this should be the end of the line for the ol’ gunslinger. It has been difficult at times to watch the Sheriff struggle to throw a ball beyond 10 yards. It’s time for him to saddle up and ride off into the horizon.

Marshawn Lynch took a very Marshawn Lynch approach to his retirement announcement (or at least what appeared to be his retirement announcement). Marshawn Lynch was a violent RB who would punish opposing tacklers. He is also well-known for his refusal to hold press conferences and/or attempts to answer questions in as few words as possible. During the Super Bowl, Mr. Lynch tweeted out a picture of neon green cleats hanging from a powerline and a “peace out” emoji in the caption. It is unfortunate that “Beastmode” will be leaving the game, but this may have been the greatest retirement announcement of all time.

Mozzarella v. McDonald’s: The Latest Chapter in the Restaurant’s Litigation Saga


We here at Abnormal Use have written much about McDonald’s and its history with absurd lawsuits. Of course, much of the discourse centered around the infamous Stella Liebeck hot coffee case and its progeny. As much as we have downplayed its significance, we must admit that the most recent suit filed against McDonald’s makes the Liebeck case look like Marbury v. Madison. According to a report from, a California man has filed a class action lawsuit against the fast food chain seeking $5 million in damages over purportedly defective mozzarella sticks. Kind of makes burns from a cup of hot coffee sound like child’s play.

So how was the man (or the proposed class) injured by the McDonald’s mozzarella sticks you ask? They weren’t. At least not in a way that necessitated medical attention. The plaintiff, Chris Howe, takes issue with McDonald’s claims that the sticks are “100% real cheese” and “real mozzarella.” Specifically, Howe alleges:

The sticks are filled with a substance that is composed (in part) of starch, in violation of the federal standards of identity for ‘mozzarella’ cheese, and contrary to reasonable consumers’ expectations regarding the meaning of the term ‘mozzarella.’

Howe believes McDonald’s cut costs by using a starch filler to comprise 3.76 percent of the “cheese,” and, thus, has engaged in deceptive practices. For the record, McDonald’s denies the allegations, stating that the mozzarella sticks are made with “100% low moisture part skim mozzarella cheese.” Whatever that means.

Regardless of the genetic make-up of the McDonald’s mozzarella sticks, the real question is whether anyone can actually be deceived by their contents. Last we checked, the mozzarella sticks are a new item made a part of the “2 for $2” menu. In layman’s terms, a customer can get mozzarella sticks and a double cheeseburger for $2. Federal standards for identifying “mozzarella” aside, don’t expect the finest organic, farm-to-table ingredients in dollar cheese sticks. And, if you really think McDonald’s is an appropriate destination to satisfy for mozzarella craving, don’t expect anyone to fork over $5 million when they don’t live up to your expectations.

Friday Links

Well, the Super Bowl will be held this coming Sunday, and since we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain an office in Charlotte, North Carolina, you can imagine that we are excited about the prospects of the Panthers. How about that Cam Newton, eh? So, yes, we’ll be watching the game, perhaps even tweeting about it here and there, enjoying it all the while. Keep Pounding!

Our favorite tweet of the week, of course, is also Panthers related:

Anticipating The Super Bowl

With the Super Bowl looming (and our own Charlotte Panthers participating therein), we here at Abnormal Use thought it would be best to revisit some of our favorite football posts. Sure, some of them relate to college football, while others relate to the NFL. But they all address legal issues relating to one of our favorite games. So, please enjoy.

NFL Litigation May Forever Change Football” (August 19, 2013).

PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

The Return of College Football (And Some Law Stuff)” (September 1, 2011).

South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

Georgia vs. Texas” (March 25, 2010).

Abnormal Use At The DRI Product Liability Conference (In New Orleans)

We here at Abnormal Use have been writing about products liability cases for six years now. So, it may not surprise you, dear readers, that we will be attending the 2016 DRI Product Liability Conference this week in New Orleans, Louisiana. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. So, our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts. (Jim is also the chair for newsletters for the DRI Product Liability Committee.).

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note. We understand that DRI is using the hashtag #DRIProducts for the conference, so look there, too!

Super Bowl Ticket Lawsuit Dismissal Affirmed by Third Circuit

Super Bowl Tickets

Two years ago, we reported on a lawsuit filed by Josh Finkelman against the NFL. We summarized the allegations of the lawsuit as follows:

. . . New Jersey consumer protection laws allegedly require that 5 percent of tickets to an event be offered to the general public.  Because the NFL offers only 1 percent to the general public (and gives the rest to teams, networks, broadcasters, etc.), scalpers charge more for the tickets than they should on the secondary market, and Mr. Finkelman was somehow forced to buy these exorbitantly priced tickets from scalpers.

Finkelman was also joined by another plaintiff, Ben Hoch-Parker. The NFL filed a motion to dismiss, arguing that Hoch-Parker lacked standing (because he had not actually purchased a ticket). The NFL also argued that since “[n]either plaintiff alleges that he attempted to purchase tickets at face value through the NFL lottery . . . plaintiffs cannot demonstrate that defendants caused them to pay . . . above face value for their tickets.”

Reportedly, in early 2015, federal judge Peter G. Sheridan granted the NFL’s motion to dismiss the class action lawsuit. In late 2015, the Third Circuit Court of Appeals apparently agreed to hear the Plaintiffs’ appeal, and a three judge panel of the Third Circuit recently affirmed the district court, “concluding that the plaintiffs lacked standing to sue in federal court.”

We did not reach out to the lawyers involved for comments, but we assume the lawyers who represented the NFL would provide comments similar to the following:

Cam Newton Dab

We would also like to add – GO PANTHERS!