The McDonald’s Case and Other Tort Reform Myths, plus Stop McDonald’s Coffee Round 2

Stella Liebeck: McDonald’s Scalding Coffee Case

Facts and Their Sources:

Stella Liebeck was the passenger in her grandson’s car, not the driver of the car

- ATLA
- Center for Justice and Democracy
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

Coffee spilled when she placed it between her legs and attempted to remove the plastic lid from the cup

- ATLA
- Center for Justice and Democracy
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

A vascular surgeon determined Stella had full thickness burns or third-degree burns over 6% of her body

- ATLA
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

She suffered burns on her inner thighs, perineum, buttocks, and genital and groin areas

- ATLA
- Ohio Academy of Trial Lawyers
- Georgia Trial Lawyers Association
- Lectric Law Library

Stella was hospitalized for 8 days

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association
- Lectric Law Library

While hospitalized, Stella underwent skin-grafting and debridement treatments (surgical removal of tissue)

- ATLA
- Center for Justice and Democracy
- Ohio Academy of Trial Lawyers
- Georgia Trial Lawyers Association
- Lectric Law Library

Stella sought to settle her claim for $20,000, but McDonald’s refused

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association
- Lectric Law Library

In discovery, McDonald’s produced documentation of over 700 claims by people burned by its coffee between 1982 and 1992—some involved similar third-degree burns

- ATLA
- Center for Justice and Democracy
- Ohio Academy of Trial Lawyers
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

Stella had never filed suit before and took an oath to that effect

- Wall Street Journal 9/1/04

McDonald’s dismissed her requests for settlement for pain and medical bills with their offer to pay only $800

- Wall Street Journal 9/1/04

McDonald’s had settled claims arising from scalding injuries for more than $500,000

- Wall Street Journal 9/1/04

McDonald’s held its coffee b/w 180 and 190 degrees Fahrenheit to maintain optimum taste

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association
- Lectric Law Library

Coffee served at home is generally held b/w 135 to 140 degrees

- ATLA
- Georgia Trial Lawyers Association
- Lectric Law Library

McDonald’s own quality assurance manager testified that a burn hazard exists w/ any food substance served at 140 degrees or above and that McDonald’s coffee wasn’t fit for consumption because it would burn the mouth and throat

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association
- Lectric Law Library

McDonald’s quality assurance manager testified that while burns would occur, McDonald’s had no intention of reducing the “holding temperature” of its coffee

- ATLA
- Ohio Academy of Trial Lawyers
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

Plaintiff’s expert, thermodynamics scholar, testified that liquids at 180 degrees will cause full thickness burns in 2-7 seconds

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association

If her spill had occurred at 155 degrees she would’ve avoided a serious burn

- ATLA
- Georgia Trial Lawyers Association
- Lectric Law Library

McDonald’s admitted its customers were unaware that they could suffer a third-degree burn from the coffee and that the statement on the side of the cup wasn’t a warning but a reminder since the location of the writing wouldn’t warn the customers of the hazard

- ATLA
- Center for Justice and Democracy
- Georgia Trial Lawyers Association
- Lectric Law Library

Christopher Appleton, McDonald’s executive, testified McDonald’s knew its coffee sometimes caused serious burns but hadn’t consulted burn experts about it

- ATLA (citing Wall Street Journal 9/1/94)
- Ohio Academy of Trial Lawyers
- Wall Street Journal 9/1/04

Christopher Appleton, McDonald’s executive, testified that McDonald’s had decided not to warn customers about the possibility of severe burns even though customers wouldn’t think of the possibility

- ATLA (citing Wall Street Journal 9/1/94)
- Wall Street Journal 9/1/04

Christopher Appleton, McDonald’s executive, testified that McDonald’s didn’t intend to change its coffee policies or procedures because “there are more serious dangers in restaurants”

- ATLA (citing Wall Street Journal 9/1/94)

Jury awarded $200,000 in compensatory damages which was reduced to $160,00 because Liebeck was found to be 20% at fault

- ATLA
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

Jury awarded $2.7 million in punitives (or two days in coffee sales) which was reduced by the trial court to $480,000 or three times the compensatory damages even though the judge called McDonald’s conduct reckless, callous, and willful

- ATLA
- Ohio Academy of Trial Lawyers
- Wall Street Journal 9/1/04
- Georgia Trial Lawyers Association
- Lectric Law Library

Subsequent to the remittitur the parties entered a post-verdict settlement

- ATLA
- Georgia Trial Lawyers Association
- Lectric Law Library
- Charles Bigbee

The case of Charles Bigbee was the “McDonald’s Coffee Case” of the 1980s. Ronald Reagan described Bigbee’s case in a 1986 speech as follows: “In California, a man was using a public telephone booth to place a call. An alleged drunk driver careened down the street, lost control of his car, and crashed into a phone booth. Now, it’s no surprise that the injured man sued. But you might be startled to hear whom he sued: the telephone company and associated firms!” In fact, Bigbee’s leg was severed after a car hit the phone booth in which he had been trapped. The door jammed after he saw the car coming and he tried to flee but could not. The accident left him unable to walk, severely depressed and unable to work. Because the phone company had placed the booth near a known hazardous intersection, and because the door was defective, keeping him trapped inside, he sued the phone company for compensation. Bigbee was brought to Congress to testify. He said, “I believe it would be very helpful if I could talk briefly about my case and show how it has been distorted not only by the President, but by the media as well. That is probably the best way to show that people who are injured due to the fault of others should be justly compensated for the damages they have to live with the rest of their lives.” House Committee on Banking, Finance and Urban Affairs, July 23, 1986. Charles Bigbee died in 1994 at age 52. Nader, Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996). Center for Justice and Democracy, 2005.

Stop McDonald’s Coffee Round 2

Here we go again.

Blitz USA, America’s largest plastic gas-can maker, recently announced that it is closing its doors after nearly 50 years in operation and laying off 117 employees because of product liability lawsuits. “We have been operating under extremely litigious environment and have been working toward a solution for quite some time,” the company wrote in a 2011 letter to its customers. “The defense costs related to increased litigation associated with fuel containment products is the primary factor that leads to our current situation.”

Big business and the tort reformers responded in a frenzy:

The Wall Street Journal titled its July 23 editorial “The Tort Bar Burns On. A Case Study in Modern Robbery: Targeting the Red Plastic Gas Can.” Editors wrote, “Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids.” It then goes on to describe as “trial-lawyer logic” the idea that “they could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can’s design as opposed to simple misuse of the product.” It concludes, “…Stories like this cry out for a bipartisan offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.”

The Southeast Texas Record was a bit more blunt in saying, “The Three Stooges or Yosemite Sam might use a lighted match to check the level in a container of gasoline and miraculously survive the combustion, but people who try a stunt like that in real life are just plain ignorant and have no one but themselves to blame.” In summary, “Another triumph for greedy litigants, their lawyers – and future Chinese manufacturers.”

And John Stossel of Fox Business said on his show, “Lawyers say they help the ‘little guy.’ Sometimes they do. But they also create their own victims. The newest casualty is Blitz USA, the nation’s largest producer of consumer gas cans.” He too defends Blitz by saying it’s not the company’s fault that “customers make stupid decisions,” but that lawyers “realize they can get rich by legally extorting money from the company.” He concludes by lamenting, “Now more Americans will store gasoline in less convenient and much less safe containers.”

It’s McDonald’s hot coffee all over again. Lawsuit abuse is killing businesses in America, the pundits will say. Why don’t people take responsibility for their own stupidity, others will say. We need to limit these lawsuits by capping damages and making it harder for lawyers to get away with these outrages, others will say. And in fact, the U.S. Chamber hired documentary filmmakers to shoot footage the day Blitz closed its doors and plans to use outtakes in political ads this fall attacking pro-consumer/anti-tort reform candidates.

But this time we don’t have to take this sitting down. If the Wall Street Journal would have done even a cursory check of the facts, they would have discovered that Blitz USA is far from the innocent corporate bystander they claim to be. Instead, the company ignored overwhelming test results (even some of their own) that their gas cans are exploding because of a manufacturing defect, transforming them into flamethrowers that are torching innocent people – many of them small children.

And in a revelation eerily similar to the Ford Pinto cases of the early 1970s, the company chose to save money rather than install a simple fix that could have prevented more than 75 horrible injuries and several deaths.

Here are the facts:

  • Flame arrestors, which have been around for more than 200 years and are used on everything from charcoal lighter fluid bottles to motor boats to metal gas cans to bottles of Bacardi 151-proof rum, were removed by Blitz when they began making cheap plastic cans.
  • Blitz subsequently became WalMart’s exclusive supplier of gas cans and capture 75 percent of the U.S. market. Other plastic gas can manufacturers have followed suit and stopped making their gas cans with the flame arrestor.
  • Result: there have been more than 75 known incidents of people severely burned or killed when a Blitz gas can exploded. Children were involved in 37 percent of those explosions; six burned to death. Overall deaths: 14. And with millions more of these gas cans floating around the country, the injuries and deaths WILL continue.
  • Most of the incidents where gas was used to rekindle a fire involved young boys who paid for the mistake with their lives. Kids like 11-year-old Jordan Sheckel who was camping with his family when a friend stopped by to play. When the friend said she was cold, Jordan decided to rekindle a campfire that had been used by the family the night before. He found a Blitz gas can next to a golf cart and started to pour gas on the ashes when the vapors ignited, flashing back to the can and causing it to explode. Jordan was burned over 80 percent of his body.
  • Many other victims had nothing to do with kindling a fire. Four-year-old Landon Beadore knocked over a Blitz gas can with his tricycle and the vapors were ignited by a hot water heater. Rob Jacoby was walking with the Blitz can on a crisp Oregon day when a static electric discharge from his body caused the can to explode. Chad Funchess was filling up his chainsaw when his Blitz gas can exploded. William Melvin, a member of a Porsche racing team pit crew who certainly knew how to handle gasoline, was filling up his lawnmower when the Blitz gas can exploded and threw him through his barn. None of these sound like examples of Yosemite Sam or the Three Stooges to us!

The Wall Street Journal might also have wanted to review two special reports on the exploding gas cans done by one of America’s most respected newsmen, Dan Rather. First in 2008 and then again in 2011, Rather interviewed victims and their attorneys, experts, government officials and a Blitz company spokesperson. While the company spokesperson looks earnestly into the camera and claims that Blitz cans without arrestors are safe, expert after expert disagrees. Viewers watch Blitz gas cans explode in various test laboratories, including one particularly disturbing sequence showing flaming gas thrown on a child dummy.

Furthermore, a company whistleblower later testified in trial that Blitz destroyed documents related to engineering studies the company had done on flame arrestors dating back to 1994. Engineers actually provided the company with specifications for a flame arrestor for their gas can and a list of manufacturers that could make the missing safety part. But plans to retrofit the cans were scrapped when the company was later sold to Kinderhook, a Wall Street private equity firm (like Bain Capital) with almost a billion dollars under management.

Other Blitz documents regarding flame arrestors were hidden from the victims that sued Blitz and were not produced until the whistleblower came forward. Ultimately, Blitz was sanctioned by a Federal Court in Texas for abusing the civil justice process by destroying documents and providing inaccurate testimony.

-from www.LetAmericaKnow.com