As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case,” was published by DRI Today. Although the case is often discussed as one involving Ms. Liebeck’s potential contributory negligence (or lack thereof, depending upon your perspective), the article focuses on the case and the specific products liability claims asserted therein. Here’s the first two paragraphs of the article:

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

In recent years, the trial lawyers, initially put on the defensive by the verdict and its ensuing publicity, have attempted to rehabilitate the reputation of the case, using the severity of Ms. Liebeck’s physical injuries as evidence of the lawsuit’s purported merit. Two years ago, trial lawyer turned filmmaker Susan Saladoff released Hot Coffee, an editorial documentary using the Liebeck case, and other cases of note, as examples of the purported evils of tort reform. To some degree, the success of the documentary, and the editorial coverage thereof, has prompted the public to rethink some of the issues of this case.  In said documentary, Saladoff stressed the McDonald’s policy of serving 180 to 190 degree coffee which, when spilled, could result in second and third degree burns like those Liebeck sustained more than two decades ago. However, reviewing the basic facts of the case and the legal issues in play, it is apparent, even two decades later, that the Liebeck case was questionable at best, frivolous at worst.

For the rest of the article, please see here.

We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System –  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.

 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

Last week, McDonald’s announced it was switching from polystyrene (aka Styrofoam) to double-walled paper cups for hot beverages in all of its restaurants. The move is made in response to changing consumer preferences and an increase in environmental consciousness. There’s nothing wrong with that, we suppose. However, whenever McDonald’s acts, it seems as if someone is there to tell us that it is bad. If you are asking why this is reportable news, then let us catch you up on the last 20 years of legal pop culture. For starters, McDonald’s coffee cups (and its coffee) are no strangers to publicity. Ever since Stella Liebeck infamously spilled a cup of McDonald’s coffee into her lap back in 1992, McDonald’s coffee has been parodied in major television shows such as “Seinfeld” and has been the cover story of an HBO documentary on the civil justice system. Always a topic of debate among lawyers and non-lawyers alike, it should come as no surprise that when the fast food chain announced a change in material for its hot beverage containers, the news sent the interwebs into a flutter.

The major significance of the announcement is not the reasons for the change, but rather the effect the change may have on future litigation. Inevitably, someone will spill coffee from one of the new cups onto himself and claim that the spill would not have occurred but for the double-walled paper construction. While we have no idea whether there is a financial difference between paper and polystyrene, we wouldn’t be surprised to see an argument in the future that McDonald’s is sacrificing consumer safety in favor of increased profit margins. Such an argument is likely a complete farce, ignoring the valid reasons behind the change. Unfortunately, this is the climate in which McDonald’s and other businesses face.

The environmental impact of a switch away from polystyrene cannot be understated. Given the billions of cups of coffee sold by McDonald’s, the impact is significant. Nonetheless, any change, albeit a good one, made by McDonald’s regarding its coffee production, will undoubtedly find its way into the allegations of a complaint. Remember, you heard it here first.

Hot beverage litigation lore now has a new chapter – “Tea, Airplanes, and Bulkhead Seats.” According to The City Paper, a Tennessee woman, Angelica Keller, has sued Southwest Airlines after spilling hot tea in her lap mid-flight. Keller spilled the beverage when attempting to pry loose a tea bag wedged between two cups. Apparently, Keller was seated in the first row of the plane, so she did not have an available drop down table to rest the cups. Before she could unbuckle her seat belt and stand up, the hot tea spread around the seat cushion, allegedly causing her second degree burns. Thereafter, she filed suit against Southwest, alleging that the airline failed to warn her of the hazards of delivering a hot beverage during a flight in a bulkhead seat.

On the one hand, this matter sounds eerily similar to the infamous McDonald’s hot coffee case. Passenger injured while holding a hot beverage in her lap. Burns exacerbated by sitting in the liquid. Facially ridiculous lawsuit to follow. Abnormal Use picking up the story.

On the other hand, this case does have some intricacies that may distinguish it from its coffee predecessors. Notably, due to her mode of transportation, the plaintiff was under the control of the defendant. It is at least arguable that the accident could have been prevented had Southwest provided tables for the bulkhead seats. Moreover, unlike the consumer who purchases hot coffee and is free to go wherever he chooses, an airline passenger confined in a packed seat thousands of feet in the air has no such luxury.

Unlike the hot coffee cases which allege that restaurants are serving an unreasonably dangerous product, this suit alleges that Southwest is negligent for serving hot liquids on a potentially turbulent flight. An interesting concept, that is. Interestingly, the plaintiff does not appear to allege that the spill was caused by turbulence, but rather, by her own conduct.

Regardless of their differences, this suit has one glaring similarity to the hot coffee cases before it – the beverages are meant to be served hot. Users should assume the risk of burns when handling a known (and desired) hot liquid.

“Oh, no!” you exclaim.  “Not another hot coffee post!”

But today is quite an anniversary.  Twenty years ago today, on February  27, 1992, the world’s most famous litigant, 79 year old Stella Lieback, ordered what would become the most famous cup of hot coffee in America.  It was in Albuquerque, New Mexico at a McDonald’s drive-thru located on Gibson Boulevard.  She was inside her grandson’s Ford Probe.  He drove from the drive-thru to a parking spot, where Ms. Liebeck, clad in jogging pants, placed the cup of coffee between her legs and then attempted to pry open the lid.  She somehow lost control and the coffee spilled into her lap.  She was attempting to add sweetener to the coffee.  The rest is history, which we need not repeat here.  However, if you are interested in doing a little historical reading, we recommend you check out our Stella Liebeck McDonald’s Hot Coffee Case FAQ file as well as our history of reporting on other hot coffee cases here.

(Oh, and to our pal Steve McConnell of the Drug and Device Law blog, please note that we made it through the entire post without a “It was twenty years ago today . . . .” Sgt. Pepper’s reference.

Noted Plaintiff’s attorney turned filmmaker Susan Saladoff has created quite a buzz with her documentary, Hot Coffee. The anti-tort reform film, which derives its title from the infamous McDonald’s hot coffee case, premiered at the prestigious Sundance film festival and will air on HBO later this month.  As if Sundance and HBO were not enough, Hot Coffee has even been given its own feature role here on Abnormal Use.  With all of this success, how will Saladoff ever be able to find another frivolous misunderstood case  to use to cash-in document?  Thankfully, we know that Saladoff reads Abnormal Use, and we have discovered the subject-matter for the perfect Hot Coffee sequel. Here’s our free advice.

A Pennsylvania woman has sued Dunkin’ Donuts for personal injuries after drinking a cup of coffee purchased from one of the chain’s Philadelphia locations.  According to the complaint, the woman ordered coffee with artificial sweetener, but the Dunkin’ Donuts employee mistakenly used sugar.  The sugar mix-up allegedly caused the lady to enter into diabetic shock.  As a result, she has had to alter her diabetes medication and has “sustained a loss of enjoyment of life.”

With Hot Coffee, Saladoff formulated the perfect equation for the anti-tort reform documentary:  sympathetic plaintiff + big corporation + morning beverage = success.  This recent action fits perfectly within the criteria.

Sympathetic Plaintiff

The first rule of film-making is that audiences can be hypnotized by conflict faced by marginalized characters.  Instead of an elderly woman as in the McDonald’s case, this case features a medication-dependent diabetic.  Similar to their reaction to children and the elderly, audiences will naturally sympathize with people having pre-existing conditions.  Certainly each of Dunkin’ Donuts employees should have known the medical history of each patron prior to filling an order.  At the very least, they should have been instructed that each customer is a potential egg shell plaintiff and that the substitution of sugar for artificial sweetener could result in the “loss of enjoyment of life.”

Big Corporation

The second rule of film-making is that when given the choice between David and Goliath, audiences choose David.  In Hot Coffee, Saladoff was able to garner greater sympathy for Stella Liebeck by suggesting that McDonald’s flexed its billion-dollar muscles and engaged in a public disinformation campaign to alter the public perception of the lawsuit.  While McDonald’s has not meaningfully commented on the hot coffee case since the 1990’s, Dunkin’ Donuts has already made a public statement.  According to the report, Dunkin’ Donuts’ legal liaison in the Philadelphia-region said:

[W]e encounter thousands and thousands of customers on a daily basis.  We don’t provide a customer with anything they don’t request.  If they request a medium coffee, they will get a medium coffee.  If you fail to request a sugar substitute , we can’t read your mind.  We sell doughnuts, not crystal balls.

It is so much easier to mischaracterize the statements of a corporate representative when he or she has the nerve to suggest the plaintiff was contributorily negligent.  By using this case, Saladoff wouldn’t even have to undertake her own disinformation campaign in response.

Morning Beverage

The final rule of film-making must be the inclusion of a standard morning beverage, preferably one which is consumed without incident every day for years before causing a problem. Unfortunately, after Saladoff’s documentary, hot coffee cases have now run their course.  Those suits now happen all the time because restaurants still haven’t learned that their patrons prefer their coffee to be served cold.  But people have now grown tired of these stories.

Saladoff needs something new, something that will really get an audience fired up.  Since we here at Abnormal Use are unaware of any defective orange juice cases, sweet coffee will have to do the trick.  Like the dangers of hot coffee, it is obviously foreseeable that the substitution of one teaspoon of sugar in a cup of coffee can have dire consequences.  We suggest ignoring any evidence that the plaintiff negligently forgot to request artificial sweetener.  These types of omissions happen all the time in documentary editing.  After all, you can only put so much information in a film before it becomes the next War and Peace.

After a careful review of the recent Dunkin’ Donuts action, we find that with a little exaggeration careful editing, the foundation for a successful documentary has been laid.  Because we here at Abnormal Use have so enjoyed Saladoff’s contributions to our blawg, we would like to return the favor and name her next great documentary – Sweet Coffee:  Why Didn’t I Just Mix It Myself?

Recently, the estates of Pennsylvania couple, Sean and Natalie Wain, filed a product liability lawsuit against Pfizer in the United States District Court for the Western District of Pennsylvania. The complaint alleged that the pharmaceutical company’s smoking cessation drug, Chantix, caused Wain to experience psychotic rage, shoot and kill his wife, and commit suicide in May 2009. Allegedly, Wain had been taking the drug for one or two weeks prior to the incident.

This action is only the most recent in a long line of Chantix-related claims. Over 100 lawsuits have been filed against Pfizer alleging that plaintiffs or their decedents committed suicide, suffered severe injury attempting to commit suicide, or exhibited unusual behavior after taking Chantix. Besides the consumption of Chantix, there is only one other apparent similarity among the plaintiffs – they were all deprived of cigarettes.

Being deprived of an addiction is difficult even without the alleged side effects of medication. We here at Abnormal Use know this all too well. No phone messages are checked or emails are read at the office until we get our first taste of coffee in the morning. On those rare occasions when that fresh nectar is not immediately available upon our arrival, we get a little angry. Our indignation only escalates as we await the percolation of our precious drink to relieve us of the perils of our temporary detoxification. While we have never reached the level of “psychotic rage,” we have also never been deprived of coffee for two weeks.

According to a study by the Institute of Safe Medication Practices, Chantix was shown to create violent behavior when users first began taking the drug, often before they had completely stopped smoking. The study also noted that the violent behavior ceased for 93 percent of the participants after they quit taking Chantix.

While this study may appear to be damning for Pfizer, a closer look indicates that it may not be as conclusive as the plaintiffs desire. First, the study was a mere compilation of Chantix adverse event reports submitted to the FDA. By limiting itself to the 78 reports submitted to the FDA and not examining the thousands of other Chantix users, the study lacks the ability to paint a global picture of the drug’s side effects. Second, this was not a controlled research study. The Institute did not gather a representative sample of individuals who wished to quit smoking. They did not study the individuals prior to the consumption of the drug. They did not administer any placebos. This study is far from what one would expect of viable scientific research.Without a controlled environment, the study lacked the ability to factor in third variables. By examining only cases reported to the FDA, at best, the study reveals correlation – not causation. With these limititations, suggesting that it is Chantix, not the process of quitting smoking, which is causing these side effects is premature.

We do not mean to suggest that these plaintiffs did not display violent behavior after taking Chantix. Nor do we suggest that quitting smoking always leads to psychotic rage. Rather, we suggest that we withhold judgment of Pfizer and Chantix before making sure that no other factors are at play. Of course, if making rash conclusions is your addiction, we know how withholding judgment may make you feel.

In honor of the Tea Party’s victory/destruction of the country as we know it, we here at Abnormal Use take this opportunity to write about tea. Not just any tea, mind you, but extremely, piping hot tea. Tea so hot, that if you removed the lid and poured it on your body, it would burn you just as if it were brewed in the fires of Hephaestus himself. A tea so destructive and ominous that it has earned the street name of “2012.” Notice that if you remove the “0” from 2012, you find yourself with 212, which is the Fahrenheit temperature at which water boils, so obviously, the imminent collapse of humanity has much to do with boiling hot tea.

Unfortunately, this is 2010, a time in which poor 76-year-old Plaintiff Rachel Moltner simply cannot subsidize her own negligence with the profits of the mega-corporation Starbucks. In yet another hot beverage case, we see a purportedly evil-beverage serving corporation forcing consumers to burn themselves and then legally smiting the innocent consumer via summary judgment, surely while the CEO lights his cigar with $100 bills and guffaws mercilessly.

On Tuesday of this week, the Second Circuit affirmed a grant of summary judgment to Starbucks against Moltner in Moltner v. Starbucks Coffee Co., No. 09-4943-cv, 2010 WL 4291299 (2d Cir. Nov. 2, 2010) [PDF]. After several months of ordering a weekly regular sized hot tea, Ms. Moltner upgraded to the “Venti,” a 20-oz behemoth of a beverage. The tea was double-cupped and sleeved, the purpose of which, was, of course, to protect the consumer from burning her hand on the very hot elixir. Moltner was handed the beverage, lid in place. She then ambled over to a table to pour some sugar into her tea. As she removed the lid, she poured some tea into her shoe, causing her burns necessitating skin grafts, as well as some secondary injuries related to her hospital stay, including bed sores, a fractured sacrum, and some herniated discs. (As an aside, Ms. Moltner’s “coffee name” was Plaintiff Oldy McOlderton.)

Per the district court, however, at Moltner v. Starbucks Coffee Co., No. 08 Civ 9257, 2009 WL 3573190 (S.D.N.Y. Oct. 23, 2009), plaintiff’s counsel tried to spin this double cupping: “Plaintiff alleges that the double cup constitutes a dangerous defect . . . .” While a double cup may be inadvisable or ineffective in other walks of life, here, in fact, it was no defect. Furthermore, expert suppositions about grip positioning or finger size were likewise dismissed. (We’d like to see the CV of the tea cup grip positioning expert.). Plaintiff also tried to make some hay with an apparent directive from Starbucks to its employees that they not double cup because it changes the cup’s center of gravity. Seriously. I have never thought about ensuring that my beverages have a low center of gravity. Unfortunately for her, Ms. Moltner’s quest for not more than $3 million dollars ended in a sweet and frothy summary judgment. Pour some sugar in that.

Lest you think me heartless, I do empathize with Ms. Moltner. I don’t wish injury upon anyone, but spilling a hot beverage on yourself is not grounds for a cause of action. It wasn’t in 1992, and it isn’t 18 years later. It’s just carelessness or bad luck or the whims and caprices of the fates. Please just accept some responsibility and be careful when you double cup.

We here at Abnormal Use have discussed many McDonald’s lawsuits over the years. Most of those suits involved hot coffee spills and often led to heated discussions over a producer’s liability for serving products in the manner nature intended. While those discussions were certainly interesting for us legal nerds, none were necessarily as critical to the fabric of our society as the most recent suit filed against the fast food giant. As reported by the Chicago Tribune, a new suit, which seeks class action status, has been filed against McDonald’s alleging that the company has committed fraud and deceptive trade practices through the pricing of its Extra Value Meals. Specifically, Plaintiff Kelly Killeen alleges that she purchased a Sausage Burrito Extra Value Meal at a downtown Chicago McDonald’s. Killeen paid $5.08 for her meal. However, a review of the menu revealed that had Kielleen purchased the meal (comprised of two burritos, hash browns and a medium coffee) a la carte, the meal would have cost $4.97. And, Killeen is none too pleased with being deprived of 11 cents, apparently.

Killeen’s suit follows a similar lawsuit filed in December alleging that 10 Illinois McDonald’s overprice the Two Cheeseburger Extra Value Meal by about 50 cents. That suit also seeks class action status.

While it may not have been discussed on the campaign trail, value meal pricing is a real issue for those of us that actually pay attention. From fast food restaurants to concessions at movie theaters and sporting events, the “value” of a pre-grouped meal is often minimal, if not non-existent. Whether it is fraud or just good sales psychology, we will leave that question for the jury. Regardless, it remains an issue we should all be conscious of as consumers. With that said, don’t count on us to join the class. Even though we loathe value meal pricing, we routinely order value meals. The reason – it is easy and convenient regardless of whether it makes economic sense. Ever try to order from a drive-thru for a bunch of kids in the backseat? The goal is just to make it through. In that situation, ordering by number will always outweigh the economic benefit of a la carte. So, McDonald’s, yes, you can keep our 11 cents.