Nearly everyone knows of the infamous McDonald’s hot coffee lawsuit.  For those of you who have followed the Abnormal Use law blog for a while, you know that we have covered the topic in great depth (a/k/a ad nauseam).  Well, now, there’s a new spin on this old classic.  Hot tequila!  That’s right: An Ohio man is suing a bar for allegedly serving him a shot of tequila that was mixed with extract from one of the spiciest peppers in the world.

Brady Bennett filed suit against Adobe Gila’s at The Greene in Beavercreek, Ohio,  alleging that a bartender negligently served him a shot of tequila with ghost pepper extract.  According to Bennett’s attorney, Bennett and his friend were out for a night on the town when the bartender offered them a round of shots.  Bennett claims the group ordered a manly round of tequila shots with apple flavoring, but Bennett alleges that the bartender gave them the old switch-a-roo with the ghost pepper extract.

Upon taking the shot, Bennett allegedly fell to the ground in pain as his throat swelled shut.  He was taken to the hospital and was ultimately just fine.

So what exactly is ghost pepper extract? Ghost pepper extract is one of the hottest peppers short of weapons grade pepper spray.  Pepper spray comes in between 2 to 5 million on the Scoville scale.  Ghost pepper, which is actually intended for use in foods and not incapacitating criminals, comes in right behind at just under 1 million on the scale.   By comparison, a jalapeno pepper is only around 10,000 Scoville units.

Serving a ghost pepper shot to a patron without a warning would certainly qualify as negligence.  However, the claim seems a little suspect.  It’s not like we are talking about Tabasco sauce.  What bartender would a) have ghost pepper extract handy at the bar and b) think to put it in shot?  Maybe the bartender was Loyd Christmas from Dumb and Dumber.  According to the restaurant’s owner, they don’t even stock ghost pepper extract at their facilities.  He did, however, admit that there may have been hot sauce in the shot.

Apparently, in addition to damages for medical expenses, Bennett also seeks damages for some real intense pain and suffering.  Bennett’s attorney told the Dayton Daily News, “Over the course of the next two weeks, when he has to go to the bathroom, it is an excruciating experience.” Ouch.

Over the past couple years, we here at Abnormal Use have written a great deal about hot liquid product liability cases.  Just this week, we reported on hot soup in a school cafeteria.  Last week, we told you about the case of the hot tea on an airline flight.  We have even kept you abreast on hot coffee litigation nationwide.  And, of course, the genesis of it all – Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.

Now, it all comes full circle as Saladoff has come to our backyard.

Tonight, from 7:00 to 9:00 p.m. at the EpiCenter Theater in Charlotte, North Carolina, you can attend a screening of Hot Coffee followed by commentary from Susan Saladoff.  The screening is sponsored by the Mecklenburg County Bar Association.  There is no cost to the general public or for attorneys not seeking CLE credit.  For those who would like 2 general hours of CLE credit, the cost is $90.

You may remember Saladoff cancelled an interview with Abnormal Use just prior to the release of Hot Coffee. We wrote at length about her background as a plaintiff’s attorney and her potential bias as a filmmaker covering the infamous Stella Liebeck McDonald’s hot coffee case litigation.  Maybe tonight, we may get the chance to finally meet her and ask her some questions.  We will be sure to report on our experience.

Over the last year, we have written ad nauseum about hot coffee-related litigation.  Time and time again, consumers of the brewed beverage have sued fast food chains after suffering burns from what Plaintiff’s lawyers insist is an “unreasonably dangerous product.”  Apparently, one consumer has turned coffee into something other than a litigation golden ticket – a weapon.

According to Cincinnati.com, 50-year old Lamar Bond was dining at a McDonald’s restaurant in Cincinnatti, Ohio.  Following an argument, Bond threw a cup of hot coffee and a biscuit at a female McDonald’s employee, striking her in the face.  Thereafter, Bond fled.  Police records did not disclose whether the employee suffered any injuries.

We don’t know the source of the argument, but we will be keeping tabs on this case. In light of all of the hot coffee litigation over the past two decades, we wonder what positions will be taken by the parties in any criminal proceeding arising from this assault and/or any workers compensation hearings prompted by this on the job injury.

But something strange is going on in Ohio. Two weeks ago, according to CBS News, Cincinatti police responded to a separate incident at an IHOP in which a woman was hit in the head with a coffee pot.  At this time, we here at Abnormal Use do not know whether these should be considered incidents isolated to the Cincinnatti area or the beginning of a nationwide movement.  Maybe we should have seen this coming. If courts keep throwing out hot coffee suits, something needs to be done right? Alas, let the people rise up against coffee served hot!

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.

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).

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.

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.

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.

The sinister suggestion that major corporations have conspired to use the Stella Liebeck McDonald’s hot coffee case as a tool to promote tort reform is odd, although film maker Susan Saladoff and her pals at the The Pop Tort seem to believe that business interests have spent millions in an effort to make the Plaintiff Stella Liebeck the poster plaintiff for tort reform. That’s one of the themes of Saladoff’s Hot Coffee documentary, which we reviewed yesterday. However, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes.

Sigh.

These allegations of corporate malfeasance prompted some thinking on our part. If the Stella Liebeck case has truly been misrepresented by maleficent corporate interests for the last 17 years, is a documentary by a plaintiff’s attorney like Saladoff the best way to expose it?  Wouldn’t the best way to ensure that the public knew the truth be to place as much information in the public record, thereby permitting the public to decide the issue without spin? Saladoff herself must agree in spirit, as part of her film includes her selectively presenting citizens on the street with trial exhibits from the Liebeck case, including photographs of Liebeck’s injuries.

But why be selective in releasing those original source documents?

As we previously noted, the 1994 Liebeck verdict came at a interesting time; the communications infrastructure we rely upon today was in its most nascent stage. Although colleges and universities (as well as early adopters and huge nerds like we here at Abnormal Use) had Internet access, the general public did not, and newspapers did not publish articles online to be relied upon later by armchair researchers.  Thus, in this age of information, most of the source material we have on the case is second-hand, at best. These days, when a lawsuit makes the news, the pleadings are instantly published on news organizations’ website. Certainly, courts place many documents on-line, whether it be the federal PACER system or state court docketing systems. But not then. We were years from court records and pleadings being placed on line. In sum, the Liebeck case, filed in New Mexico state court in 1993 and tried in 1994 happened before anyone digitally preserved such things for posterity.

Where does that leave us?

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.”)

Some privacy concerns might exist. However, the heirs of Ms. Liebeck could easily address those hurdles and permit the release of any sensitive material. (They were apparently comfortable with Saladoff using photographs of Ms. Liebeck’s injuries.). If her relatives are willing to be interviewed by friendly documentarians about the case, we suspect they would have no problem with releasing these materials for the general public as a whole. If, after all, the goal is for the truth to be revealed, the release of as much information as possible would certainly serve that goal, would it not?

Sure, you ask, wasn’t there a confidential settlement in the case which occurred in December of 1994 which might prohibit the release of such material? We here at Abnormal Use have not seen the language of that agreement (why would we have?). Certainly, it has not kept Ms. Liebeck’s local counsel, New Mexico attorney Kenneth R. Wagner, from being interviewed by Ms. Saladoff in her documentary about the case. Further, the trial transcript is a public document, likely outside the scope of any confidentiality clause. It should be released to the general public, just as it was released to Saladoff for her purposes (but again, by whom, we know not).

Accordingly, we here at Abnormal Use officially challenge Morgan to release these materials to the extent he is permitted to do so under the settlement agreement. Further, we challenge Morgan to consult with Ms. Liebeck’s heirs to secure their permission to release any additional information (particularly Ms. Liebeck’s deposition transcript), to the extent that their permission is needed under relevant law. (Further, we recall something from law school about deceased persons no longer having any right to privacy, anyway.) Certainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?