The two friends are now described as estranged, which may put in perspective a noteworthy discrepancy between their respective testimony. Marino “said she was never blindfolded at any point during the day”, while Ramos “told the court Marino was blindfolded for the entire two-hour car ride and even as they traversed most of the trail until just before the top of the falls. … In the end, the court said it found Ramos’ version more credible and that the ‘profound danger posed by the Kaaterskill Falls was open and obvious to anyone employing the reasonable use of her senses.'” (Paul Nelson, “Court rules against fall victim”, Albany Times-Union, Sept. 7).

Birthday surprise doesn’t work out is a post from Overlawyered - Chronicling the high cost of our legal system

• Litigation as foreign policy? Bill authorizing U.S. government to sue OPEC passes House, and is already contributing to friction with Russia [AP; Reuters; Steffy, Houston Chronicle; earlier here, here, and here]


• Albany prosecutors charge boxing champion’s family with staging 23 car crashes, but a jury acquits [Obscure Store; Times-Union; North Country Gazette]


• New at Point of Law: Bill Lerach may retire; Abe Lincoln’s legal practice; Philip Howard on getting weak cases thrown out; “Year of the Trial Lawyer” in Colorado; and much more;


• Multiple partygoers bouncing on a trampoline not an “open and obvious” risk, says Ohio appeals court approving suit [Wilmington News-Journal]


• Skadden and its allies were said to be representing Chinatown restaurant workers pro bono — then came the successful $1 million fee request, bigger than the damages themselves [NYLJ]


• Who will cure the epidemic of public health meddling? [Sullum, Reason]


• Turn those credit slips into gold, cont’d: lawsuits burgeon over retail receipts that print out too much data [NJLJ; earlier]


• Lawprof Howard Wasserman has further discussion of the Josh Hancock case (Cardinals baseball player crashes while speeding, drunk and using cellphone) [Sports Law Blog; earlier]


• “Women prisoners in a Swedish jail are demanding the ‘human right’ to wear bikinis so they can get a decent tan.” [Telegraph, U.K.]


• Disbarred Miami lawyer Louis Robles, who prosecutors say stole at least $13 million from clients, detained as flight risk after mysterious “Ms. Wiki” informs [DBR; earlier at PoL]


• Indiana courts reject motorist’s claim that Cingular should pay for crash because its customer was talking on cellphone while driving [three years ago on Overlawyered]

June 8 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

(Bork used to be a fellow at AEI; and Walter and I have dined at the Yale Club.)

Update: Bloomberg has some relevant (and some not-so-relevant) quotes from Bork.

Update: More from David Bernstein. (The “Olson” quoted is Ted Olson, not Walter.)

Bork sues the Yale Club is a post from Overlawyered - Chronicling the high cost of our legal system

(Because Mathews claimed that he fell out of bed because he was startled, it’s not clear how a warning would have helped, unless he was seeking an audible recording regularly repeating, much like airport moving walkways, “Caution! The bed is above the ground!” Of course, this might interfere with sleep, but wakefulness is watchfulness.)

A unanimous appellate state court reversed on the obvious grounds that the danger was open and obvious and didn’t require a warning (the same grounds on which the McDonald’s coffee case should have been thrown out), but plaintiffs’ lawyer Gary Piserchia threatens an appeal to the New Jersey Supreme Court. (Robert Schwaneberg, “Suit over loft bed falls short”, Newark Star-Ledger, Aug. 16, via Lattman).

NJ court: No warning that one might fall out of loft bed required is a post from Overlawyered - Chronicling the high cost of our legal system

The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).

Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.

But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.

Kevin Drum: only the “most extreme” support the position of “trial lawyers who sue McDonalds over hot coffee”

False: The main trial-lawyers lobby, the Association of Trial Lawyers of America, publishes an Orwellian “fact-sheet” defending the verdict; many law professors incorrectly teach their students that it was a legitimate case. Indeed, Drum is attacked by several commenters for taking this position.

Commenter cmdicely: the industry standard was to serve at a lower temperature

False: The National Coffee Association of the USA recommends serving at 180-190 degrees; another article suggests industry standard is 160 to 185 degrees.

According to a Sep. 1, 1994 Wall Street Journal interview with Reed Morgan, Liebeck’s attorney, he measured the temperature at 18 restaurants and 20 McDonald’s, and “McDonald’s was responsible for nine of the twelve highest temperature readings.” Which means that, even before one accounts for conscious or unconscious bias in the measurements, at least three, and probably more (what about the other eleven McDonald’s?), restaurants were serving coffee at a higher temperature. And Starbucks serves at a higher temperature today, and faces lawsuits over third-degree burns as a result (Jan. 2, 2004).

Commenter Carl: I presume hundreds, if not thousands of people have been saved from severe burns from unreasonably hot coffee.
Commenter MSR: Go to your home coffee maker and make a cup; it will be at about 140 Fahrenheit.

False: To the extent that McDonald’s and other restaurants lowered the temperature of their coffee, all it did was cost those institutions market share—people like hot coffee, and today Starbucks has gone from a local shop to a dominant national chain, despite prices several times higher than McDonald’s, because they serve their coffee hotter than McDonald’s served it to Stella Liebeck, recommending a temperature of 175 to 185 degrees. Starbucks faces suits over third-degree burns hot coffee cases (Jan. 2, 2004), and so does McDonald’s Aug. 13). And, moreover, while in the early 1990’s home coffeemakers only brewed up to 130-140 degrees, today people can and do buy far more expensive and higher-quality coffeemakers that can serve coffee at the 190-to-200-degree temperature that coffee is supposed to be brewed at.

I’ve seen no data that suggest that the small number of people who’ve burned themselves on hot coffee has gone down. If it has, it’s far more likely that the publicity over Stella Liebeck has caused people to be more careful with their hot beverages, and because coffee sleeves, a product invented shortly before Liebeck’s suit went to trial, have become a popular way for restaurants to save paper with the added benefit of additional safety.

Commenter Robert: McDonalds coffee was not only hot, it was scalding – capable of almost instantaneous destruction of skin, flesh and muscle.

False: Stella Liebeck suffered terrible third-degree burns because, while wearing sweatpants that absorbed the liquid and held it to her skin, she sat in a puddle of hot coffee for over ninety seconds.

Commenter Stefan: The burn victim offered to settle with McDonald’s for a token sum (around $10,000 if memory serves)

False: Liebeck asked for $20,000, and then, later, $300,000 to settle before trial. McDonald’s offered a token sum. And why should McDonald’s offer any money when they hadn’t done anything wrong?

Commenter Jeffrey Davis: I’m trying to imagine anyone who was injured that way and that severely not seeking redress. And failing.

Well, Angela McMahon suffered third-degree burns from spilling coffee on herself, and sued on the identical legal theories that Stella Liebeck did. Her case was correctly thrown out, even though the defendant waived the most obvious legal defense.

The tort system is meant to deter wrongdoing; the mistake of the left is the increasingly successful attempt to make the main purpose compensating the injured, and redistributing wealth from wealthier bystanders tangentially related to the victim who haven’t done anything wrong. The tort system is a remarkably inefficient means of performing this task, which is why litigation reform is needed.

Commenter MSR: One other point about the McDonald’s case that should be mentioned here. The award to the woman for injuries was about $130,000 or 13 times her original request. Enough to cover her costs and send a message that it’s better to just settle than take a loosing [sic] case to court.

False: The jury award was $2.9 million. The court lowered this to $650,000. Both Liebeck and McDonald’s appealed, and then settled, allegedly for something close to, if not identical to, the final judgment. McDonald’s didn’t have a losing case: it was only the error of the judge in letting the case get to the jury combined with the error of the jury that caused them to lose. The fact that a defendant can exposed to many multiples of actual damages is one of the serious problems of the tort system. Even when 9 out of 10 juries get it right, if the tenth jury awards ten times as much damages as it should, it undoes the work of the juries that exonerated the defendant. This encourages lottery litigation. (E.g., Jun. 3, 2004).

Commenter MSR: In the course of the trial, as others have noted, it was made clear that the coffee was much closer to boiling than to the temperature of ordinary coffee

False: As noted, coffee is supposed to be that hot, and people prefer coffee that hot, and Starbucks serves even hotter coffee today.

Commenter MSR: many people had been injured (some 700 over the previous decade)

Misleading: McDonald’s sells billions of cups of coffee. There had been 700 complaints over hot coffee in the previous decade, which translates into a complaint rate of 1-in-24-million, with only a small fraction of the complaints reflecting injuries as severe as Liebeck’s. By comparison, 1-in-4-million Americans will be killed by lightning in a given year, and 1-in-20-million Americans (and a much higher ratio of American toddlers) drown in 5-gallon buckets in an average year.

Commenter MSR: the complete absence of any warning that the coffee was nearly at the boiling point

False: Aside from the “open and obvious” danger that coffee presents that should eliminate a warning, Stella Liebeck’s cup did have a warning! The jury thought it was “too small”, which reflects the problem with failure-to-warn claims—one can always second-guess a warning after the fact, because it’s always possible to give a more extensive warning. And defendants are caught in a trap, because if they give too many warnings, they’re accused of failing to warn by burying the important warnings in a morass of unimportant warnings. At what point does common sense come into play?

Commenter theorajones starts off correctly noting that the McDonald’s coffee case is a no-win argument for liberals, but then blows the winning streak when she invokes Valerie Lakey.

Commenter Alek Hidell: it was McDonald’s, not Ms. Liebeck, that forced a trial (and the subsequent “jackpot award”), was it not?

Why is it the defendant’s fault for “forcing a trial” by refusing an unreasonable settlement demand? It’s blaming the victim to say that the shopkeeper brought on his own broken knees because he refused to pay Tony Soprano protection money. McDonald’s was entitled to a fair trial when the plaintiff insisted on going forward, and didn’t get one.

Commenter Cyan: many of these claims were settled

Misleading. Yes, McDonald’s took responsibility when one of its employees spilled coffee on a customer and settled cases of burns from such spills. Because a coffee-spill is usually the fault of the person who spilled the coffee. The Liebeck jury and judge decided to mostly blame the deep pocket instead.

Update: Check out this British legal analysis of similar cases brought in the UK.

Urban legends and Stella Liebeck and the McDonald’s coffee case is a post from Overlawyered - Chronicling the high cost of our legal system

While you’re at it, you really should be reading Point of Law every day if you have any interest in the more serious side of litigation and its reform, or just want to follow Ted’s or my writing (we both post regularly there). Among the topics you would have learned about recently: the difference, among civil litigators, between “chicken catchers and chicken pluckers“; Colorado lawmakers may restore to homeowners the right not to be sued over “open and obvious dangers” on their property; FDA panel recommends letting Vioxx back on market; a new study of class actions by Yale’s George Priest; medical malpractice law in the U.K.; Sen. Biden praises “bottom-feeders”; silicosis diagnosis scandal; a new legal ethics blog; tons more stuff on the Class Action Fairness Act, including this, this and this; problems with that much-ballyhooed report on medical costs supposedly causing half of consumer bankruptcies; and the Wall Street Journal on loser-pays.

The Times’s errors on malpractice, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system

The Clerk justifies the verdict on a couple of grounds: McDonald’s had 700 previous complaints; and Ms. Liebeck suffered horrific injuries.

To say that there were 700 previous complaints of burns (ranging from scalds to real injuries) from McDonald’s coffee begs the question. After all, 700 is just the numerator. What’s the denominator? The answer is in the tens of billions. A product that hurts one in twenty-four million people is not “unreasonably dangerous”, especially when the vast majority of the 700 incidents were not the sort of grievous injuries Ms. Liebeck had. (McDonald’s had settled previous cases, but the cases were incidents where the McDonald’s employees had spilled the coffee.) However, the jury took the 1-in-24 million statistic not as evidence that McDonald’s coffee was not dangerous, but as evidence that McDonald’s cared more about statistics than people — when in fact the statistic should have been used to throw the case out.

That Ms. Liebeck was surely serious hurt doesn’t change the underlying problem with the lawsuit: Ms. Liebeck was hurt because she spilled coffee on herself. If (as all fast-food restaurants do now) McDonald’s had the obvious statement “Coffee is hot and can burn you” on the cup (a juror later complained that McDonald’s warning was too small), would that have prevented her injuries? True: McDonald’s could have served luke-warm coffee or even iced coffee. But at the end of the day, the proximate cause of Ms. Liebeck’s injuries, as awful as they were, was Ms. Liebeck.

The argument for liability is that McDonald’s chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here’s a question: the reason Ms. Liebeck’s injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck’s sweatpants had been made out of Gore-Tex or some other liquid-resistant material, she never would have been hurt. What’s the principle of tort law that holds McDonald’s liable, but not the clothing manufacturer?

UPDATE: Curmudgeonly Clerk responds.

I think that Frank gets the denominator wrong where statistical significance is concerned. After all, the relevant inquiry is not what chance you have of being injured while drinking coffee (i.e., # of injuries/# of cups sold and consumed). The question is what would your likelihood of injury be if the coffee is spilled (i.e., # of injuries/# of cups spilled on a person). And the latter fraction yields a result of 1 or a decimal very close to it, because, at the temperatures in question, McDonald’s coffee would not fail to injure a human being.

CC’s proposal makes no public policy sense. By that argument, my bright red Swingline stapler is “unreasonably dangerous” because the likelihood of injury if I were to attempt to staple myself would be 100%.

CC’s calculation is also off: if Ms. Liebeck were wearing Gore-Tex instead of sweatpants, she wouldn’t have been injured by the coffee. Which goes back to my point: any principled grounds for holding McDonald’s liable are equally applicable to the clothing manufacturer. By CC’s definition, the sweatpants are “unreasonably dangerous”, because the odds that a wearer of sweatpants would be injured if they pour a cup of hot McDonald’s coffee in their lap and then fail to remove the garment that is holding the liquid close to their skin is close to 100%.

The denominator of how many cups of coffee were sold without injury is the correct inquiry. For every 24 million cups of coffee that McDonald’s sells, there is one injury (and “injury” is defined very broadly here to include trivial injuries that resulted in complaints) — and thirty of those purchases will be by people who will be struck by lightning that year. Society considers being struck by lightning as the epitome of the exceedingly improbable event. So perhaps something that happens more than an order of magnitude less often than a lightning-strike is sufficiently improbable as not to be unreasonably dangerous?

Frank is simply incorrect to the extent that he suggests that, but for the sweatsuit, Liebeck would not have been injured.

Not in the slightest. CC tries to dodge the question by assuming away the facts, but there are many types of fabric that do not absorb liquid; some of those types of fabric also repel liquid. It’s no more unreasonable to demand that clothing manufacturers account for the dozens of people that hurt themselves because they get boiling liquids on their cotton clothes than to demand that McDonald’s account for the dozens of people who spill coffee on themselves.

The answer to Frank’s last question is that a sweatsuit is not unreasonably dangerous, whereas coffee hot enough to result in burns that require medical attention is.

It would be uncharitable of me to point out that this response assumes the conclusion. But ipse dixit isn’t principled reasoning. (Perhaps CC is claiming that the standard is “hot enough to result in burns that require medical attention.” But an oven (or a heated frying pan or a toaster) is hot enough to result in burns. Are such kitchen implements therefore unreasonably dangerous because one in some X million users of ovens will burn themselves on an oven? CC cannot be making the claim that oven-makers are liable for anyone who burns themselves on an oven.)

Again: it was possible for McDonald’s to sell coffee that wouldn’t burn anyone. But it was also possible for the clothing manufacturer to sell clothing that wouldn’t result in injury if someone spilled coffee on themselves. Of course it’s ridiculous to hold the clothing manufacturer liable in that situation. But the clothing manufacturer is just as much a sine qua non cause as McDonald’s is.

CC makes a correct positive statement that there are states, such as Texas, where one can recover in tort against a defendant who is not the proximate cause of the injury. Which is an additional place where there is a need for tort reform: I am making the normative statement that a defendant who is not the proximate cause should not be held liable.

To summarize, the problems with the Liebeck case are as follows:
1) a product that, through open and obvious consequences, injures one in 24 million people is not “unreasonably dangerous”;
2) the fact that billions of cups of McDonald’s coffee are sold should be per se proof that it was serving its coffee at a temperature that consumers desired, rather than “too hot.” No one was forced to buy the hotter McDonald’s coffee instead of the lukewarm coffee supposedly served elsewhere; if McDonald’s coffee was really undesireably “too hot,” it would be punished in the marketplace for this flaw. Instead, there is public policy by jury, and the millions of customers who, for whatever reason, prefer McDonald’s coffee, are out in the cold;
3) a defendant who is not the proximate cause of an injury should not be held liable for that injury;
4) there is no principled construction of tort law that holds McDonald’s liable for failing to prevent injury in the case of a foreseeable coffee spill, but not a clothing manufacturer for failing to prevent injury in the case of a foreseeable coffee spill, and one can agree that the latter scenario is an absurd proposition for liability;
5) a defendant should not be subject to punitive damages because the jury did not understand that “statistically insignificant” is a technical statistical term, and not an insult; and
6) punitive damages were assessed against McDonald’s based on their coffee sales, which is a punishment for selling a lot of coffee, rather than because of their behavior.

McDonald’s coffee revisited is a post from Overlawyered - Chronicling the high cost of our legal system

In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state’s highest court in which he had argued that his girlfriend’s grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, “Open and Obvious Danger Doctrine Reaffirmed”, Winter 2001; for details of case see also Cathleen F. Crowley, “Court decision could impact pool owners”, Lawrence Eagle Tribune, Jan. 4, 2000).

Update: two personal-responsibility cases is a post from Overlawyered - Chronicling the high cost of our legal system