Defense lawyer Stephen McConnell reviews the shame-on-business documentary The Bleeding Edge. There were few surprises: “We had been fully warned that the film was a thoroughly one-sided screed against the medical device industry….We also hear from ubiquitous plaintiff expert David Kessler, a former head of the FDA.” And see: our coverage back when of other one-sided documentaries including “The Hunting Ground” (college sexual assault), “Super Size Me,” the one on the (fraud-riddled) banana pesticide litigation, and above all the trial-lawyer-backed “Hot Coffee” (much more on which).
After years in which his blog Abnormal Use has led the way in coverage of hot-coffee-spill liability cases, it finally happens to Nick Farr: he spills some on himself.
- Mikal Watts trial begins over claims of fraud in BP gulf spill claims [AP, Miriam Rozen/Texas Lawyer, Alison Frankel/Reuters, earlier]
- If someone spilled hot coffee on you, would it take you two years to react? [Southeast Texas Record on filing just before runout of statute of limitations]
- “Woman Sues Construction Company For Allowing Man To Kill Himself By Jumping From Hi-Rise And Landing On Her Car” [CBS Los Angeles]
- “Families: Hamas on Facebook, so firm must pay $1B after terror deaths” [Cyrus Farivar, ArsTechnica]
- Cloud of blame: “W.V. Firm Blames Almost 300 Companies In Each Asbestos Lawsuit” [Jessica Karmasek, Forbes]
- Singer Collette McLafferty, sued over $75 cover-band gig, is poster person for New York bill to curb meritless lawsuits [Michaela Kilgallen, Albany Times-Union]
- Delay FDA menu labeling rules? Tinker? No, repeal [Baylen Linnekin, earlier]
- European trade negotiators would like to keep cheeses and beverages on American shelves from bearing names like Parmesan, Gouda, feta, Champagne, port, and sherry unless made over there. Nein danke, no grazie, non merci [William Watson, Cato] Weird how EU laws prevent spirits producers from being completely honest with consumers [Jacob Grier]
- Regressive-yet-progressive: “Taxing soda fits the narrative in which the obese are oppressed and soda manufacturers are the oppressors.” [Arnold Kling]
- New research (“no consensus among scientists on whether a population-wide reduction of salt was associated with better health outcomes”) could be blow to Gotham’s sodium regulation cause [Dan Goldberg, Politico New York] “Suit Halts NYC’s Misguided Restaurant Salt Warning Labels” [Linnekin]
- Lawyers in hot coffee suits still pushing “unreasonably high holding temperature” theories [Nick Farr, Abnormal Use, earlier]
- Chef turned Amish traditional sausage maker in rural Maine finds that regulation is a grind [Linnekin]
Coffee giant Starbucks is said to use too low a “fill-to” line in latte cups and a class action filed in federal court in California wants money over that [Nation’s Restaurant News via Ira Stoll, Future of Capitalism]
More, Nick Farr/Abnormal Use:
Regardless of the merits of the short-pouring allegations, one particular allegation in the suit gave us pause. The plaintiffs allege that “Starbucks refuses to fill any hot beverage to the brim of the cup. Thus, under no circumstances will Starbucks ever serve a Grande Latte that actually meets the fluid ounces represented on the menu.” If we read that correctly, it sounds like the plaintiffs are actually suggesting that hot coffee should be filled to the brim of the cup to ensure that they are getting the full bang for their buck. We are guessing that had Starbucks done so, there would be a whole other class of plaintiffs clamoring for some massive hot coffee burn litigation. Maybe the plaintiffs should demand Starbucks use bigger cups and let the not filling to the brim policy stand for those who value safety.
- “Definition of Insanity – Expecting Certification of a Personal Injury Class Action” [James Beck on oral contraceptive defective packaging litigation]
- “Noticed something strange. In jury selection, attorneys for two other defendants conferred with attorneys for the plaintiff.” [Madison County Record, more]
- Changes in federal discovery rules effective December 1 [Mathea Bulander and Jason Moore (Redgrave LLP), Washington Legal Foundation] More: Jeff Bennion, Above the Law.
- Eric Turkewitz takes issue with my reference to New York’s Scaffold Law in writing on Sheldon Silver’s downfall [New York Personal Injury Attorney Blog]
- Changes ahead for Rule 23, which governs class actions? [Andrew Trask]
- Behind the attacks on arbitration: plaintiff’s bar, key political player, is “fighting back hard” against threat to its interests [Daniel Fisher, earlier here, here, etc.]
- Not every hot-coffee-spill case is like Liebeck v. McDonald’s. Sometimes defendants actually are negligent [Nick Farr/Abnormal Use, earlier here and many others]
The Minnesota state police don’t deny that they see coffee-drinking behind the wheel as something that might constitute prohibited distracted driving, but deny Lindsay Krieger’s claim that that was why she was pulled over on Interstate 94 in St. Paul. A spokeswoman says an officer stopped and ticketed Krieger (not her first time) for driving without a seat belt, and the coffee lecture was in the nature of an added warning. Krieger was once “busted in Eagan…for eating Cheerios out of a cup while waiting in line to make a turn.” [Minneapolis Star-Tribune, FindLaw]
- “Lawyers Won 10x Fee Payoff By Avoiding Competition, Objector Claims” [Daniel Fisher, Center for Class Action Fairness on Capital One TCPA settlement]
- DMCA surprise: “Automakers are supporting provisions in copyright law that could prohibit home mechanics and car enthusiasts from repairing and modifying their own vehicles.” [Mike Masnick, TechDirt; Pete Bigelow, AutoBlog]
- Comments deadline May 19 on proposed Indian Child Welfare Act regulations; American Academy of Adoption Attorneys files comments warning they go beyond statute, will harm kids [related group, earlier and general]
- Asbestos lawsuits are “economic engine” of rural Edwardsville, Ill. [Associated Press]
- Chicago pays damages to victims of police torture, suggestively labeled “reparations” [Sandhya Somashekhar, Washington Post, thanks for quote]
- Court dismisses pro se litigant’s handwritten “God v. gays” complaint for lack of basis for federal jurisdiction, other predictable deficiencies [Volokh, Lowering the Bar and followup]
- “Starbucks not liable in police coffee-spill case, jury decides” [WRAL, earlier]
Because the twenty-year-old Stella Liebeck case is getting another round of attention on some blogs — Susan Saladoff’s short film Hot Coffee having served quite successfully to keep the trial lawyers’ side of the controversy in circulation — it’s worth a closer look at the latest in Jim Dedman’s (Abnormal Use) writings deflating the case’s mythos [Defense Research Institute DRI Today, previously briefly noted in a roundup a couple of weeks ago]. Excerpt:
The central issue was whether hot coffee, which by its very nature is hot, is an unreasonably dangerous and defective product because of its temperature. More specifically, the case concerned whether coffee served at 180-190 degrees is so hot that it makes the coffee itself unreasonably dangerous and defective. Shortly after the trial, The Wall Street Journal reported that McDonalds’ internal manuals at the time–produced in the litigation— indicated that “its coffee must be brewed at 195 to 205 degrees and held at 180 to 190 degrees for optimal taste.” … Contemporary media reports suggested that the coffee was approximately 165 to 170 degrees at the time of the spill, indicating that it had cooled somewhat between the time it was served and the time it had spilled….
Interestingly, today, on its website, the National Coffee Association advises that “[y]our brewer should maintain a water temperature between 195–205 degrees Fahrenheit for optimal extraction” and that “[i]f it will be a few minutes before it will be served, the temperature should be maintained at 180–185 degrees Fahrenheit.” Even in 1994, the National Coffee Association confirmed that McDonalds’ serving temperatures were within industry guidelines (and many restaurateurs have found that their customers complain if they lower the temperature of their coffee).
Failure to warn was also one of the theories in the case:
Curiously, the warnings issue receives little attention these days. Although Liebeck alleged that “the container that it was sold in had no warnings, or had a lack of warnings,” the very cup at issue is prominently displayed—with its “Plaintiff’s Exhibit 44” sticker still affixed—on both the website and the promotional poster of the Hot Coffee film. However, in the very same pictures, it is clear that the cup advises in orange text: “Caution: Contents Hot.”
P.S. It might be added that those “everything you know about the Stella Liebeck case is wrong” internet memes are very often wrong themselves. In particular:
* The story got onto national wires via the AP and immediately set off widespread public discussion on the strength of its own inherent interest, with no evident push from any interest group. When an organized public relations effort did emerge in early weeks of discussion, it was from the plaintiff’s side, which held a press conference in Washington seeking (successfully) to establish and solidify themes in Liebeck’s favor, such as that there had been many earlier consumer complaints about McDonald’s coffee temperature.
* The most gripping supposed “myths of the Liebeck case” were not in fact widely asserted or circulated either at that time or since. Very few commentators erroneously asserted that Liebeck had been driving or that her car was moving, or (even worse) mistakenly claimed that her injuries were somehow minor. Only by treating stray outliers as somehow representative of public discussion can revisionists portray the public’s grasp of the case as grossly ill-informed. It was then and is now plausible for both laypersons and experienced lawyers to fully and accurately grasp the facts of the Liebeck case and, based on that understanding, sharply disagree with the New Mexico jury’s verdict in her favor. That’s one reason most American juries both before and since 1994, asked to decide hot-beverage lawsuits based on similar fact patterns and claims, have decided for the defense even where serious injuries might engage sympathy for a plaintiff’s situation.
* Meanwhile, some truly extraordinary myths and misconceptions — such as that McDonald’s somehow mysteriously “superheated” its brewing water to temperatures unknown in home teakettle use — have widely circulated on the internet in years since, advanced by lawyers and even professors who have every reason to know better. Peculiar assertions of this sort seldom get attention in the oft-seen “myths of the Liebeck case” internet genre.