Friday, June 25, 2010

The Truth About the McDonaald's Coffee Burn Case

Friends, as a courtroom trial lawyer for 43 years, juries became less and less friendly as the insurance companies propaganda became more and more effective. For example the celebrated lie promulgated by Travelers (I think it was). They said they had to settle a case for a huge amount for a man who tried to cut his hedge with a lawnmower and injured himself. This was all over the news. This and other constant bombardment by PR smeared lawyers and lawsuits with propaganda constantly. I felt like I was in a war, for I had to confront juries with their arms folded with that look on faces that said, "come on scumbag, lets hear what lies you are going to tell us."

This culminated in the McDonald's case, which I have cited below from Wikipedia. There is a part of a trial called "voir dire," in French meaning to see and to hear, wherein the lawyer asks prospective jurors in the "selection" process, how they feel about things.

"Who has heard of the McDonald's coffee burn case?" Every hand went in the air. "Mr. Smith, what do you think about that?" Mr. Smith would say it was outrageous. So would Mr. Jones, Mrs. Thibodaux, and Mrs. Boudreaux. I would have to take another tack, and ask them if they could erase that case from the book I was going to read from and start with a clean white bright page with nothing written on it, no McDonald's case in the pages, and consider it free and clear of any other case? Some would say yes, and some say no. I would strike the no's, and there was always some vigilante who said yes and as a sleeper he would be negatively influential.

So the McDonald's case was murder for me as a trial lawyer for the remaining years I was in the business as a courtroom plaintiff lawyer. Here is what really happened, as per Wikipedia. (BTW, the anatomical part that was scalded was a very personal part to Mrs. Liebeck, rendering it scarred and traumatically affected for her love life.)

Liebeck v. McDonald's Restaurants also known as the "McDonald's coffee case," is a 1994 product liability lawsuit that became a flashpoint in the debate in the U.S. over tort reform after a jury awarded $2.86 million to a woman who scalded herself with hot coffee she purchased from fast food restaurant McDonald's. The trial judge reduced the total award to $640,000, and the parties settled for a confidential amount before an appeal was decided. The case entered popular lore as an example of frivolous litigation; ABC News called the case “the poster child of excessive lawsuits.

Liebeck's attorneys argued that McDonald's coffee was "defective", claiming that it was too hot and more likely to cause serious injury than coffee served at any other place. Moreover, McDonald's had refused several prior opportunities to settle for less than the $640,000 ultimately awarded. Reformers defend the popular understanding of the case as materially accurate, note that the vast majority of judges who consider similar cases dismiss them before they get to a jury,and argue that McDonald's refusal to offer more than a nuisance settlement reflects the meritless nature of the suit rather than any wrongdoing


On February 27, 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, New Mexico, ordered a 49¢ cup of coffee from the drive-through window of a local McDonald's restaurant. Liebeck was in the passenger's seat of her Ford Probe, and her grandson Chris parked the car so that Liebeck could add cream and sugar to her coffee. She placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap. Liebeck was wearing cotton sweatpants; they absorbed the coffee and held it against her skin as she sat in the puddle of hot liquid for over 90 seconds, scalding her thighs, buttocks, and groin. Liebeck was taken to the hospital, where it was determined that she had suffered third-degree burns on six percent of her skin and lesser burns over sixteen percent. She remained in the hospital for eight days while she underwent skin grafting. During this period, Liebeck lost 20 pounds (nearly 20% of her body weight), reducing her down to 83 pounds. Two years of medical treatment followed.

Settlement offers

Liebeck sought to settle with McDonald's for US $20,000 to cover her medical costs, which were $11,000, but the company offered only $800. When McDonald's refused to raise its offer, Liebeck retained Texas attorney Reed Morgan. Morgan filed suit in a New Mexico District Court accusing McDonald's of "gross negligence" for selling coffee that was "unreasonably dangerous" and "defectively manufactured". McDonald's refused Morgan's offer to settle for $90,000 Morgan offered to settle for $300,000, and a mediator suggested $225,000 just before trial, but McDonald's refused these final pre-trial attempts to settle.


The trial took place from August 8–17, 1994, before Judge Robert H. Scott.[13] During the case, Liebeck's attorneys discovered that McDonald's required franchises to serve coffee at 180–190 °F (82–88 °C). At that temperature, the coffee would cause a third-degree burn in two to seven seconds. Liebeck's attorney argued that coffee should never be served hotter than 140 °F (60 °C), and that a number of other establishments served coffee at a substantially lower temperature than McDonald's. Liebeck's lawyers presented the jury with evidence that 180 °F (82 °C) coffee like that McDonald’s served may produce third-degree burns (where skin grafting is necessary) in about 12 to 15 seconds. Lowering the temperature to 160 °F (71 °C) would increase the time for the coffee to produce such a burn to 20 seconds. (A British court later rejected this argument as scientifically false. Liebeck's attorneys argued that these extra seconds could provide adequate time to remove the coffee from exposed skin, thereby preventing many burns. McDonald's claimed that the reason for serving such hot coffee in its drive-through windows was that those who purchased the coffee typically were commuters who wanted to drive a distance with the coffee; the high initial temperature would keep the coffee hot during the trip. However, this claim contradicts the company's own research that showed customers actually intend to consume the coffee while driving to their destination.

Other documents obtained from McDonald's showed that from 1982 to 1992 the company had received more than 700 reports of people burned by McDonald's coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000.[4] McDonald's quality control manager, Christopher Appleton, testified that this number of injuries was insufficient to cause the company to evaluate its practices. He argued that all foods hotter than 130 °F (54 °C) constituted a burn hazard, and that restaurants had more pressing dangers to warn about. The plaintiffs argued that Appleton conceded that McDonald's coffee would burn the mouth and throat if consumed when served.[16]

A twelve-person jury reached its verdict on August 18, 1994. Applying the principles of comparative negligence, the jury found that McDonald's was 80% responsible for the incident and Liebeck was 20% at fault. Though there was a warning on the coffee cup, the jury decided that the warning was neither large enough nor sufficient. They awarded Liebeck US$200,000 in compensatory damages, which was then reduced by 20% to $160,000. In addition, they awarded her $2.7 million in punitive damages. The jurors apparently arrived at this figure from Morgan's suggestion to penalize McDonald's for one or two days' worth of coffee revenues, which were about $1.35 million per day. The judge reduced punitive damages to $480,000, three times the compensatory amount, for a total of $640,000. The decision was appealed by both McDonald's and Liebeck in December 1994, but the parties settled out of court for an undisclosed amount less than $600,000.

Friday, June 18, 2010

Who is Really Responsible for the Oil Spill

I must put in a word about the BP oil spill.

Who is responsible?

We are.

We Americans insist on gas guzzling vehicles, air conditioning always set on freezing, appliances that gobble energy, and a lifestyle that Julius Caesar or the Pharoahs would have thought to be paradise. This lifestyle requires more gas, which demands more oil, which pushes exploration into new and untested areas. If it can happen, it will happen. And it happened, finally. Inevitable.

In June, 1967 an almost identical incident occurred in the gulf at 200 feet of water when the IXTOC (spelling), a Mexican well blew out with 30,000 barrels of oil a day spilling into the Gulf.

Watch this youtube interesting newscast

It took six or eight months to finally shut it down with about the same amount of oil now gushing into my beautiful Gulf of Mexico at the hand of British Petroleum. They tried everything that BP has tried, and not worked, except BP has 5000 feet of water. Finally the pressure in the Mexican well was reduced by offset drilling. I think they drilled two wells into the same shaft or something and reduced the pressure enough to cap it. I am not sure if BP has the technology to do that at a mile down.

In other words, the greed of oil companies push beyond their ability to repair at the expense of the environment. They had no way of knowing how to fix this if it should happen, and it happened. It is like walking too close to the edge and falling with no safety harness. It is just going to happen. That is the way things work on this planet and in this universe. If it can happen, it will happen.

This time it has the potential of destroying the fishing, shrimping, crabbing, oyster fishing, sporting, and the beautiful pristine estuaries of my wonderful old fishing grounds in the marshes and coastline of Louisiana. There are things that can be done to repair, such as using friendly oil loving microbes by people like my friend Mark Gould, which would eat the oil and leave no harmful residue. But do you think they will buy it? Lets see what will happen.

The point of this writing is to put responsibility where it should be. We, the energy sucking Americans, let the dogs out, and the dogs here are companies like BP, who with bravado ventured out beyond reason at our expense---not their expense mind you---for they have money beyond counting. And they could give a damn less about what happens.

And who really owns BP? It is rumored that the Rothchilds, those who make and break presidents and control the lives of everyone in the Western world and possibly elsewhere. Do you think they give a damn about Louisiana, Mississippi, Alabama or Florida? Don’t be silly.

Don’t be too hard on BP because of its vile stupidity. Had we insisted on alternative sources or energy, rather than let the Rothchilds and Rockefellers and their ilk run our lives, this would not have happened. If we weren’t so damn selfish and self-centered, we would have never allowed the oil people to control our economy. Hey, we like it as long as it is going well, don’t we, except for the prices which we bitch about.

I think we got what we all kind of expected would happen sooner or later. But as humans, and that is not saying much, we cannot take the blame or handle responsibility, so lets kill BP and the politicians, etc.

There I’ve said it and I am glad. Humans, please get it right for once.

Monday, June 7, 2010

psychiatry is an ass

"If the law supposes that," said Mr. Bumble, "the law is an ass---an idiot." (Charles Dickens-Oliver Twist)

In the case I am about to cite, and quote verbatim from headlines of the June 5, 2010 issue of the St Petersburg Times, the law is an ass or worse. My experience with psychiatrists in forty three years of practicing law taught me they are just the opposite of the Hippocratic oath they took: "first do no harm." I was no "sit in the office and notarize papers or talk to high falutin' corporate clients". I was in the trenches, representing people in court, going to their homes and work sites, helping those who couldn't help themselves. So I have seen life and the law from the bottom up.

I asked "what is man?" After ruminating on this a bit, "Dr." Curtis Steele, a Baton Rouge shrink, said "an isolated and random occurrence in a chaotic universe." In other words, an infinite number of monkeys with an infinite number of typewriters would eventually type the U S Constitution. An accident. Here goes the article. Decide for yourself who is the ass.

The state used him to defend its ban on gay adoptions, despite attorney's objections.

TALLAHASSEE: Disgraced psychologist George Rekers was labeled a "right-wing, religious-based" expert witness and rejected for months by state attorneys defending Florida's gay adoption ban.
But when they couldn't find anyone else to replace him on the witness stand, Attorney General Bill McCollum overuled his trial attorneys, quickly hired Rekers, and paid him his agreed upon contract with no questions asked, according to documents released this week by McCollum's office.
Rekers, a psychiatry professor at the University of South Carolina has been stripped of his credibility after reports surfaced that he hired a male escort from to give him nude "sexual" massages and accompany him on a recent European vacation.
The adoption ban has been ruled unconstitutional and the state is appealing. The state paid Rekers more than $120,000 to testify on the "negative effects" of gay parenting. (comment: go figure)
Rekers' fee was almost a third of what the state has spent on the gay adoption ban lawsuit to date--$383,000. Half the cost has gone to attorney's fees; the rest to general expenses, including $120,000 to Rekers.
Meanwhile, records obtained by St. Petersburg Times and the Miami Herald show that despite repeated objections from the Department of Children and Families, the attorney general agreed to advance Rekers $60,900 to get him to take the case and another $59,700 a year later as the case dragged on.
The payments included $9,000 for 30 hours of searching journal articles and books, $27,000 to "read the relevant publications since Sept 2004 and evaluate and critique the "methodological quality". A year later he charged nearly 30 hours for reading the same materials again.
McCollum said he wouldn't hire Rekers again knowing what he knows today, but he defends the expense. "The only problem we had was the expert, and the amount of money, and the credibility of the expert" Bob Butterworth, the then Secretary of the agency said.
McCollum's staff asked for the first check to be expedited because they feared losing him before their deadline to submit the expert witness list.
Rekers asked for the money up front so that his fees would not be contested, as had happened in previous cases in which he testified. McCollum said he was aware that Rekers was not considered as credible in Arkansas as he had been in a previous case in which he was used in Florida, "but he was qualified. There was never any dispute over his qualifications."
Hannah, the Attorney General handling the case, acknowledged they hired Rekers to bolster their case."If you haven't hired the experts to help you win the case, then you're bot doing the job. You can't sit and rationalize over the expert or later even over his personal life," she said.

I have seen some really insane things happen in court, but this takes the cake.

I had a childlike faith that the law would always be based on reason and the truth would eventually be revealed. It was the catalyst of two opposing elements, forming during and as a result of the conflict, the truth. Not!

The American legal court system works well enough, in spite of the fact that the courts accept experts to give opinions to bolster the position of one side or the other, and the only expertise accepted by the courts in the area of mental problems are the psychiatrists who haven't a clue. All experts are paid for their opinions. The court or jury will buy one over the other, based on varied criteria---from personality to the number of degrees and certificates held to the amount of statistics that can be rattled off convincingly. Many times it was a race between the other lawyer and I to get to a particular expert because he was good. He usually managed to rationalize my position over the other side. Many are what may be referred to as whores. Some are honest, and credible. But if you want to win your case, do you really want to know the implicit truth? That is why they say lawyers all go to hell. I didn't play that game during the last twenty five years of my practice. And there are some good lawyers who won't play that game either. The idea is to seek them out if you wish. Most people want a junk yard dog when it comes to taking a case to court. And the lawyer makes the moral decisions on how to prosecute the case.

Rekers is a good representative of and just a speck in the mass of nastiness that is psychiatry. But he will survive, believe it or not, and continue to keep his license and continue to "do harm" wherever he goes.