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.

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).

Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.  We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January.  We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name.  In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.”  Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener.  With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform.  Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform.  Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages.  Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.”  Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers.  After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it.  As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics  are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded.  Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case.  After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.”  Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.”  Those are bold statements.  Yet the 88 minute film dedicates only ten minutes to the Liebeck case.  If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions.  Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(2) Liebeck was actually injured; she suffered second- and third-degree burns;

(3) McDonald’s policy was to serve coffee between 180-190 degrees;

(4) McDonald’s had been notified of 700 prior burnings;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick.  Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous.  In fact, Saladoff neglects to address the point often made here at Abnormal Use:  coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer.  This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot.  Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted.  (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse.  Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice.  Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct.  Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates.  The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber.  But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate.  This seems a bit unfair, right?  Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws?  Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit  reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.).  Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money.  The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases.  And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . .  These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information.  And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq.  By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform.  Of course, trial lawyers like Saladoff benefit in the best of ways: financially.  The larger the verdict for the plaintiff, the larger the payday for the trial lawyer.  It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized.  In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity.  (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.”  As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.”  Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense.  Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal  Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

The film premiers tonight on HBO at 9/8 Central.

With all the talk about Plaintiff’s attorney Susan Saladoff’s new documentary, “Hot Coffee” and the Stella Liebeck McDonald’s hot coffee case, we here at Abnormal Use are also making the media rounds.  Today, a New York Times write-up on Saladoff’s documentary – which premieres on HBO tomorrow  – quotes one of our earlier posts noting would be documentarian Saladoff’s decades-long background as a prominent Plaintiff’s attorney.  Here’s the excerpt in question from the piece by Times legal correspondent John Schwartz:

With a subject this fought-over it’s not surprising that the documentary itself has been controversial. A legal affairs blog that covers product liability law, Abnormal Use, criticized the film for having come from the hands of a trial lawyer, stating, “We’re thinking that this might not be the most objective documentary on the subject.”

Of course that wasn’t really the filmmaker’s goal. Ms. Saladoff is, as a lawyer and now a director, an advocate. One of several strands in the film, Ms. Liebeck’s story shows how tort reformers deftly spun her case and others to nudge public opinion and argue for the need to shut down what industry advocates called “jackpot justice.” The film also lays out facts of the case that are rarely heard.

Schwartz quotes directly from this prior blog post of ours, which we ran back in January. Of course, The Times, being The Times, attempts to cover for the anti-tort reform filmmaker against our charges of potential bias. (Maybe The Times is still miffed at us for scooping them on our “Views of 2011 from 1931” story last December.).  As always, if you’re looking for more information on the Liebeck case, please see our comprehensive FAQ.

Yesterday, Abnormal Use became more than an awarding-winning legal blog.  We became an award-winning legal blog that was quoted on the radio.  That’s right, the radio!

On NPR’s “Here & Now,” the host used two of our former blog posts on the Stella Liebeck McDonald’s hot coffee case in an interview with Susan Saladoff.   Saladoff, as you might recall, is the former plaintiff’s attorney who has created the anti-tort reform documentary, Hot Coffee. You can listen to that interview here (Abnormal Use comes in around the 10:35 mark).

You can re-read the posts cited by the host here and here.

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?

First entering the public consciousness in 1994, the Stella Liebeck trial, known as the McDonald’s hot coffee case, has become such a fixture of litigation lore that many are unaware of the basic facts of the case, or even where and when it was tried. Litigated and reported upon before the rise of the Internet, much of what appears online about the case is the worst sort of unsourced speculation and conjecture. Our friends at Overlawyered have done an excellent job over the years dispelling the various myths about the case, including those that have arisen suggesting that the industry standard was to serve coffee at temperatures lower than that of McDonald’s. In an effort to publish some of the basic facts of the case, we here at Abnormal Use have created the following FAQ file regarding the matter. In so doing, we have relied solely upon the original pleadings and motions in the case and some contemporary news coverage.

On February 27, 1992, seventy-nine year old department store clerk Stella Liebeck was in the passenger seat of her grandson’s Ford Probe when she ordered a 49 cent cup of coffee at the drive through of a McDonald’s franchise in Albuquerque, New Mexico. Shortly thereafter, she spilled the coffee into her lap and sustained a series of burns. Her original state court lawsuit was filed in March of 1993, tried in August of 1994, and ultimately settled for an undisclosed sum in late 1994. Media coverage of the jury’s original verdict was, shall we say, immense.

Where was the case filed and tried?

The Second Judicial District Court in Bernalillo County, New Mexico.

What did the complaint allege?

Filed on October 5, 1993 the Plaintiff’s Amended Complaint recited the following allegations:

A. The coffee purchased by her on 2/27/92 was unreasonably dangerous because it was excessively hot and Defendants are liable to her for the physical and mental harm which it caused at the time of its sale and consumption on 2/27/92.

B. The product in question, coffee, was and is routinely sold and manufactured by the Defendants, and it reached Plaintiff in the same condition as it was at the time of the sale; further, Plaintiff in no way is guilty of any fault and the Defendants are strictly liable to Plaintiff under the Restatement of Torts Second, §402(a);

C. The coffee was defectively manufactured, served in a container that had design defects, and the coffee itself was manufactured defectively due to excessive heat; further, the container that it was sold in had no warnings, or had a lack of warnings, rendering the product defectively marketed;

D. The producing cause of Stella Liebeck’s injuries was the exclusive fault of the Defendants;

E. At all material times Defendants were aware of the dangerous condition of the coffee inherent in serving it at the temperature at which it was sold; they knew of the likely consequences of such acts; they knew of the risks involved and acted with a conscious indifference and willful and wanton disregard for the safety of Stella Liebeck and any other consumer of the product;

F. Defendants are expert manufacturers, distributors, and sellers of coffee and had a duty to test and inspect the product for unreasonably dangerous conditions, which they either failed to do, or alternatively, which they did negligently, or in the alternative, did with malice with complete disregard for the dangers inherent in selling coffee at the temperature at which it was sold causing a high probability of severe burns in connection with the sale of the product.

What damages were alleged in the amended complaint?

As set forth in the Amended Complaint, the damages purportedly sustained and sought were:

VI.

As a result of spillage of the defective coffee, Plaintiff sustained burns on her perineum, upper inner thighs, buttocks, genital areas, and lower abdominal wall including the left groin. The burns consisted of both second and third degree burns and were of such severity as to require debridement and skin grafting, causing enormous conscious pain and suffering, mental anguish, and loss of life’s enjoyment, for which she seeks damages. The foregoing treatment caused Plaintiff to incur medical expenses in the past, at the present, and into the reasonable future as follows: (a) past medical expenses: approximately $10,500.00; (b) future medical expenses: approximately $2,500.00. Total: $12,500.00.

VII.

Plaintiff Stella Liebeck was born on XX/XX/12 and was 79 years old at the time of the injury. At the time in question Plaintiff was a healthy, robust, and gainfully employed person, who worked as a sales clerk and earned in excess of $5,000.00 per year; Stella Liebeck has incurred lost earnings of approximately $5,000.00.

IX.

Further, as a direct result of the fault, or in the alternative, the negligence of the Defendants, Plaintiff has sustained severe disfigurement and permanent scarring to her body, which she claims has damaged her in an amount of not less than $100,000.

X.

As a result of the severe and painful burns described herein, Plaintiff sues the Defendants in the amount of $125,000 for physical pain, mental pain and anguish, and loss of life’s enjoyment during the pendency of treatment including skin grafting, debridement, and general recovery from painful scarring, as well as pain and discomfort associated with drawn and tight skin in the scarred areas, which pain and discomfort persists at the present and will persist into the future.

XI.

Plaintiff comes now and sues McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. for gross negligence, for willful and wanton disregrad of the rights, safety, and welfare of Stella Liebeck and any other consumers that purchase coffee in the defective state in which it is sold by Defendants, and for the marketing defect of no warning, or in the alternative, insufficient warning, because McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. fully know of and are aware of innumerable burn cases caused by the fault, or in the alternative, negligence of their operations in the manufacture, sale, and marketing of extremely hot coffee. For this, Plaintiff comes now and sues in the amount of three times compensatory damages for punitive damages.

What were McDonald’s defenses?

In its Answer to the Amended Complaint, filed on September 22, 1993, McDonald’s asserted the following affirmative defenses:

SECOND DEFENSE

If the Plaintiff was injured and damaged as alleged, then her injuries and damages were the result of her own negligence or of the negligence of a third person or party for whom this Defendant may not be held responsible.

THIRD DEFENSE

If the Plaintiff was injured and damaged as alleged, which is specifically denied, then her injuries or damages were the result of an accident or inadvertence which was not the fault or responsibility of this Defendant.

FOURTH DEFENSE

Plaintiff has failed to mitigate her damages.

FIFTH DEFENSE

Plaintiff should be required to make a prima facie showing of entitlement to punitive damages before any evidence hearing thereupon is adduced before a jury.

SIXTH DEFENSE

Plaintiff’s claims for excessively hot coffee fail to state a claim for which this Court might grant relief.

SEVENTH DEFENSE

At all material times, these Defendants adhered to the applicable standard of care and engaged in reasonable conduct.

Who was sued?

In the original complaint, which was filed on March 21, 1993, Plaintiff only sued P.T.S., Inc., a New Mexico corporation and the local franchise operator. In the amended complaint, however, the McDonald’s corporation was added as a defendant. Ultimately, P.T.S., Inc. was dismissed as a defendant prior to the matter being submitted to the jury.

Where was the McDonald’s franchise in question?

The franchise was located at 5001 Gibson Blvd., S.E., Albuquerque, New Mexico 87108. According to Google Maps, there’s still a McDonald’s franchise at that location: ‎

View Larger Map

Is there a reported opinion?

Yes. The trial court’s original order entering the jury verdict is available on Westlaw as Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. CV-93-02419, 1995 WL 360309, (In the Second Judicial District Court of New Mexico, Bernalillo County, August 14, 1994). However, there is no reported appellate opinion due to a confidential settlement several months after the verdict.

Who was the judge?

The Honorable Robert Hayes Scott was the state court district judge who presided over the case. He is now a United States Magistrate Judge for the U.S. District Court for the District of New Mexico in Albuquerque. He was initially appointed to the position in 2003.

Who were the Plaintiff’s attorneys?

The lead Plaintiff’s attorney was S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas. Serving as counsel with him were Jerry R. McKenney of Houston, Texas (who at the time of the filing of the original complaint, had been licensed just two years) and local counsel Kenneth R. Wagner of Kenneth R. Wagner & Associates, P.A. (now of Wagner Ford Law, P.A.) in Albuquerque, New Mexico.

Who were the defense attorneys?

Bruce Hall, Tracy McGee, Susan S. Throckmorton, and Charles K. Purcell, all of the Rodey, Dickason, Sloan, Akin, & Robb, P.A. firm in Albuquerque, New Mexico. Now the managing partner of the Albuquerque office of Jackson Lewis, Danny W. Jarrett was then a law clerk at the Rodey firm who executed a summary judgment affidavit setting forth coffee temperature measurements he took at six local restaurants as a part of the defense case.

What were some of the pretrial motions filed in the case?

On January 21, 1994, the defendants moved for summary judgment. The motion was denied. On July 29, 1994, a hearing was conducted on Plaintiff’s Motion for Partial Summary Judgment. The parties stipulated as to causation of the injuries – that the burns were caused by the coffee. On July 29, 1994, in a letter decision, Judge Scott denied Plaintiff’s motion as to liability.

What was the basis of the McDonald’s motion for summary judgment?

In support of its motion for summary judgment, McDonald’s alleged the following as “undisputed material facts” upon which it based its motion:

1. Plaintiff Stella Liebeck was a passenger in a vehicle which proceeded through the drive-through window of a McDonald’s Restaurant (franchisee P.T.S., Inc.) located at 5001 Gibson, S.E., in Albuquerque, New Mexico, on or about February 27, 1992. Complaint for Damages, Paragraph III.

2. At the time in question, Plaintiff was 79 years old. Complaint for Damages, Paragraph VI.

3. Subsequent to purchasing the coffee, Plaintiff spilled it on herself, sustaining second and third degree burns to her upper inner thighs, buttocks, and other areas of her body. Complaint for Damages, Paragraph VI.

4. Plaintiff has alleged that the coffee was “excessively hot” and “defective” because of its high temperature. Plaintiff’s Complaint, Paragraph IV.

5. The second and third degree burns which Ms. Liebeck sustained could have been sustained at temperatures as low as 130 Fahrenheit. Aff. of Turner M. Osler, M.D., Para. 17.

6. The fact that the coffee that Ms. Liebeck spilled on herself may have been slightly or even significantly hotter than 130° Fahrenheit does not mean that her injuries were worse or more extended than they would have been otherwise. Aff. of Turner M. Osler, M.D., Para. 18.

7. Ms. Liebeck’s age may have caused her injuries to have been worse than they might have been in a younger individual, as the skin of an older person is thinner and heals less easily than the skin of a younger individual; however, even a young adult could have sustained third degree burns after spilling liquid at a temperature of as low as 130° on herself. Aff. of Turner M. Osler, M.D., Para. 19.

8. Unless Ms. Liebeck removed all of her clothing immediately, the clothing may have served to hold in the heat of the spilled liquid, and this may have aggravated the nature and extent of her injury; however, to a reasonable degree of medical probability, she would nevertheless have sustained third degree burns as a result of the coffee spilled. Aff. of Turner M. Osler, M.D., Para. 20.

9. A survey of six (6) fast food or restaurant establishments and two (2) private residences was conducted in September 1993 by Danny Jarrett. Aff. of Danny Jarrett, passim.

10. As part of this survey, Mr. Jarrett used a standard food thermometer and measured the temperature of coffee brewed and maintained at these locations. Aff. of Danny Jarrett, Paras. 3 & 4.

11. Mr. Jarrett’s measurements of coffee were taken when it was first served to him, after approximately 15 minutes, and after approximately 30 minutes. Aff. of Danny Jarrett, passim.

12. The coffee was served to Mr. Jarrett in containers ranging from styrofoam cups to ceramic mugs. Aff. of Danny Jarrett, passim.

13. At no location did Mr. Jarrett record the temperature of freshly served coffee below 130°. Aff. of Danny Jarrett, passim.

After citing several cases in support of its position, McDonald’s argued:

Defendants contend that Ms. Liebeck’s burns were not the result of serving excessively hot coffee, as other restaurants in this community have been demonstrated to serve coffee at temperatures which, for the sake of argument, might be lower than those served at the McDonald’s in question, but which also were high enough temperatures to have still caused the type of injuries and burns that Ms. Liebeck sustained.

It is unclear from the materials currently available whether McDonald’s submitted a memorandum in support of its motion.

What was the Plaintiff’s argument in her summary judgment motion?

In her motion for summary judgment, Plaintiff, after relying upon McDonald’s responses to requests for admission and the deposition testimony of McDonald’s Quality Assurance Group Manager of Administration Christopher D. Appleton, argued:

Plaintiff contends that Defendants have admitted, either through testimony or requests for admission, all elements of products liability and breach of warranty sufficient to prove her case on liability and causation. Moreover, the lack of an adequate warning makes the product defective. The lack of an adequate warning has been admitted by the Defendants. Therefore the product was defective. The defective product caused the burns to Ms. Liebeck’s body. There are no material issues of fact remaining for decision on Plaintiff’s claims of product defect with injuries caused thereby.

Similarly, the Defendants have admitted that the product, when sold, was not fit for its intended purpose, consumption. Accordingly, there no longer exists any material question of fact on the question of whether Defendants breached the implied warranty of fitness for a particular purpose; Defendants themselves have admitted the breach.

(Record citations omitted).

When did the case go to trial?

August 8-12 and 15-17, 1994.

Who were the testifying experts?

The defense experts were as follows:

Christopher Appleton (McDonald’s Manager of Quality Assurance). Viewed as an ineffective witness, Mr. Appleton apparently admitted that he was aware of the risk of hot coffee and had no plans to reduce the temperature. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). Further, Mr. Appleton stated that the number of reported burns from McDonald’s coffee in relation to the total number of cups sold was not high enough to justify the modification of the serving temperature.

Dr. P. Robert Knaff (human factors engineer). Dr. Knaff testified that the number of prior coffee burn victims was statistically trivial in comparison to the number of cups sold.

Dr. Turner M. Osler (medical expert). Dr. Osler submitted an affidavit, stating that in his opinion, Ms. Liebeck would have suffered the same extent of burns had she been served coffee at a temperature as low as 130 degrees.

The Plaintiff’s experts were as follows:

Dr. David Arredondo (Mrs. Liebeck’s treating physician). Dr. Arredondo testified as to the extent of Mrs. Liebeck’s injuries. Mrs. Liebeck suffered burns to approximately six percent of her body – 90 percent of which were third-degree burns. Further, he testified that elderly people are more susceptible to burns than younger people due to the thinning of the skin that occurs with age.

Dr. Charles Baxter (burn specialist). Dr. Baxter offered his opinion at trial that coffee served at 180 degrees was excessive and could not be consumed at that temperature. Dr. Baxter opined that the optimal temperature range to serve coffee was between 155 and 160 degrees. (Historical footnote: He operated on President Kennedy and Governor Connally on November 22, 1963).

Dr. Kenneth Diller (thermodynamicist). At his deposition, Dr. Diller testified that, in his opinion, McDonald’s was serving an unreasonably dangerous product when it sold its consumers hot coffee in styrofoam cups without warning of the possibility of sustaining burns.

Dr. Lila F. Laux (psychologist). Dr. Laux testified that the addition of a warning to the McDonald’s coffee would have influenced Mrs. Liebeck’s behavior.

Melissa Patterson (economist). In calculating hedonic damages of $660,900 from the date of Mrs. Liebeck’s injury, Ms. Patterson assumed that Ms. Liebeck lost all enjoyment of life the moment she was burned and would continue to have no enjoyment until her death.

What was the original verdict?

The jury found for the Plaintiff on her claims of product defect, breach of implied warranty, and breach of the implied warranty of fitness for a particular purpose. The jury also found that Plaintiff was twenty percent at fault.

What were the damages awarded?

After deliberating four hours, the six man, six woman jury initially awarded $200,000 in compensatory damages, which was reduced by the judge by $40,000 due to the finding of comparative fault. The jury also awarded $2.7 million in punitive damages.

What became of the verdict?

McDonald’s filed post-trial motions. In late August or early September 1994, Judge Scott appointed retired New Mexico Supreme Court Justice William F. Riordan to mediate the dispute and ordered the parties to “make a good faith effort to resolve and completely settle all pending issues.” (“Conference Ordered on Spilled Coffee,” Associated Press, Tulsa World, September 2, 1994, available at 1994 WLNR 5089128). On September 16, 1994, Judge Scott denied McDonald’s motion for new trial and motion for judgment notwithstanding the verdict, noting that “the compensatory award of $160,000 shall not be disturbed.” However, in that same order, the court noted as follows: “The award of punitive damages of 2.7 million dollars was excessive, as a matter of law. Accordingly, a new trial shall be granted on all issues unless Plaintiff accepts — by written notice to the Court within 25 days of the date of entry of this Order – a remittitur of the punitive damages award as hereby directed by the Court. The remittitur, if accepted, shall reduce the punitive damages award to $480,000, which represents the trebling of the $160,000 award of compensatory damages.” In so doing, Judge Scott commented that the new punitive amount was justified due to “‘willful, wanton, reckless and what the court finds was callous” conduct on the part of McDonald’s. (Associated Press, “Ruling Eases Heat on McDonald’s; Restaurant Will Still Appeal Coffee Verdict,” Wichita Eagle, September 15, 1994, available at 1994 WLNR 823624). At that time, McDonald’s spokesperson Ann Connolly told the Nations’ Restaurant News that “[s]afety is always our first concern, and that is why we have ‘hot contents’ printed as a reminder on our cups. We knew the initial damages awarded were excessive and unjustified, and yesterday the judge acknowledged that and agreed. But we feel they are still excessive, and we will appeal this decision.” “(Judge slashes McD settlement to $480,000: slams chain as ‘callous’ but reduces $2.9M jury decision,” Nation’s Restaurant News, September 26, 1994, available at 1994 WLNR 5313844). In early October of 1994, the New Mexico Supreme Court denied Liebeck’s appeal of the reduction of the punitive award. At that time, McKenney was quoted as saying that “[a] decision has to be made whether to seek a new trial or accept the reduced amount.” (“Court Refuses to Raise Award for Coffee Spill,” The Chicago Tribune, October 14, 1994, available at 1994 WLNR 4335536). On November 3, 1994, Judge Scott denied Plaintiff’s October 21, 1994 motion for reconsideration of the remittitur order. Finally, on November 28, 1994, the court vacated the judgment, presumably due to the confidential settlement which was announced in the media the following week.

What efforts were made to settle the matter?

Liebeck initially approached McDonald’s with a demand of $20,000 to cover her medical bills, future medical expenses, and lost income. McDonald’s countered with an offer of $800. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). As trial approached, Liebeck’s settlement demand increased to approximately $300,000. (Id.). After denying McDonald’s motion for summary judgment, the trial judge ordered the parties to attend mediation. During the session, the mediator recommended that McDonald’s accept a $225,000 offer. (Id.). McDonald’s declined. Following the jury verdict and the trial court’s reduction of the punitive damages award, both parties appealed. Before the case was heard on appeal, the parties settled out-of-court for an undisclosed sum. When the settlement was announced, Wagner claimed that “McDonald’s now (is putting) warnings on its coffees as have some of the other fast food chains. That was her principal objective, to make things safe. Have you ever had McDonald’s coffee? It’s hot, hot hot. It’s as hot as the water in your radiator.” (“McDonald’s settles suit over burns from coffee,” The Houston Chronicle, December 2, 1994, available at 1994 WLNR 5009816).

What was the immediate reaction to the verdict?

Everyone knows the tale of the New Mexico jury that awarded an octogenarian Plaintiff nearly $3 million after she spilled a cup of McDonald’s coffee into her lap at the drive through. In 1994, that verdict became the talk of the nation and the poster child for tort reform. Since that time, the case has become the legal community’s most infamous urban legend. However, most Americans probably wouldn’t recognize Plaintiff Stella Liebeck’s name; fewer realize that the large award of damages was ultimately reduced to approximately $800,000 by the trial court. The story of the hot coffee case – much like a childhood game of “telephone” – has been told and re-told so many times that the line between truth and myth has become indistinguishable.