If you're hit by lightning, don't take it lying down!

December 22, 2004 11:12 AM

Opportunists and Self-Described Victims vs. Any Available Deep Pockets For the stupid and the dead, there's the Darwin Awards. For the opportunistic and the alive, there's the Stella Awards. The Stella Awards were inspired by Stella Liebeck. In 1992, Stella, then 79, spilled a cup of McDonald's coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million in damages. And of course it wasn't that simple, but the brief descriptions of the various cases make for entertaining reading. Serious legal geeks can have full case reports mailed to them, or check out and post to the site forum.
posted by orange swan (46 comments total)

I honestly can't believe this one:

#5: Cole Bartiromo, 18, of Mission Viejo, Calif. After making over $1 million in the stock market, the feds made Bartiromo pay it all back: he gained his profits, they said, using fraud. Bartiromo played baseball at school, but after his fraud case broke he was no longer allowed to participate in extracurricular sports. Bartiromo clearly learned a lot while sitting in federal court: he wrote and filed his own lawsuit against his high school, reasoning that he had planned on a pro baseball career but, because he was kicked off the school's team, pro scouts wouldn't be able to discover him. His suit demands the school reimburse him for the great salary he would have made in the majors, which he figures is $50 million.

Is Cole Bartiromo the prototypical leader of the next generation, or an aberation? Scary either way.

Betcha he trys to sue me for defamation or something, just for this post.
posted by C.Batt at 11:28 AM on December 22, 2004

I guess I'm a little confused. The case involving "Stella" isn't what I'd call a good example of a completely frivolous lawsuit, yet, they've named their site about frivolous lawsuits after it? Strange people.

Otherwise a fairly good read.
posted by Swifty at 11:29 AM on December 22, 2004

The Frivolous Lawsuits Will Destroy America meme is one of the more dangerous memes currently afoot.
posted by lodurr at 11:39 AM on December 22, 2004

No kidding. I can name ten people who have never been involved in any sort of lawsuit (on either end) who suddenly think frivolou lawsuits are the cause of their rising insurance and health costs and knowingly tout tort reform as the cure.
posted by sonofsamiam at 11:45 AM on December 22, 2004 [1 favorite]

The cases themselves are interesting, but I could barely stand the opinionated self-righteous send-up of them on the site. Turned me right off, especially puzzling comments like "the 'plump' woman of 150 pounds was now 83..."

Bizarre.
posted by agregoli at 11:47 AM on December 22, 2004

The top two for 2002 are especially heinous. It's one thing to shake down a corporation for a quick buck, but to engage in a frivolous lawsuit to the marked detriment of those around you...may razor-studded squids appear in your stomach and force themselves out in a slow, erratic manner.

As for Stella, she's become a symbol for frivolous lawsuits, despite the (in my opinion, still not terribly convincing) merits of her case. Also, she was, in fact, hurt quite badly in her incident and did not harm those around her in pursuit of her case. Compared to the people on these lists, she's Einstein and Ghandi combined.

Nonetheless, she's the first silly case to come to people's minds.

On preview: not only is the Frivolous Lawsuit as Armageddon meme dangerous, but it also appears that for many of these cases, the people wind up losing anyway. Spurred by rumors of frivolous lawsuits reaping in millions, idiots scramble to file their own frivolous lawsuits, thus creating more rumors of frivolous lawsuits sweeping the nation!
posted by Sticherbeast at 11:47 AM on December 22, 2004

Keep in mind that a lot of the cases that you see in forwards are actually bogus.
posted by grouse at 11:48 AM on December 22, 2004

In all fairness, lodurr, there are a lot of OB/GYNs out there who can't practice their love on women because of lawsuits like these.
posted by Simon! at 11:49 AM on December 22, 2004

Right, grouse. This link was actually born because my manager (a lawyer) sent me a email of hilariously frivolous law suits. I was skeptical, and found this site with a quick search.
posted by orange swan at 11:51 AM on December 22, 2004

You know the meme I hate? The "abusive lawsuit = tort" meme. This web site never claims that it has anything to do with torts, but I guarantee you when a lot of people read 2003 case #4 they'll say "by gosh, we need tort reform." Despite the fact that there are probably no torts involved in that case and tort reform wouldn't do a damn to change it.
posted by grouse at 12:02 PM on December 22, 2004

Keep in mind too, that many of these lawsuits are not being filed by people looking to make a quick buck, but by entities looking to avoid responsibility or otherwise abuse the legal system to some advantage; for example, the 2003 winner, where a police dept. is suing Taser because one of its officers pulled her real gun and killed a suspect by mistake. It would be interesting to see more example of this sort of frivolous suit on the site (another example; Harley-Davidson trying to trademark the sound of their motorcyles). Then of course there are SLAPPs. Corporations file as many if not more frivolous lawsuits than individuals(and probably go further with them due to their higher legal budget), yet paint themselves as victims; I have yet to see a tort reform proposal that limits the ability of corporations to file suits or collect damages.
posted by TedW at 12:02 PM on December 22, 2004

inspired by a lawsuit that was neither frivolous nor outrageous?

You say that as if it's fact. An excellent case can be made that the award was outrageous, and a fairly decent case that the basis of the suit was frivolous. I know she was severely burned, but severity of damage doesn't tell you anything about liability. I know McDonald's kept its coffee hotter than competitors, but that alone doesn't establish negligence (someone always has to have the hottest coffee). Even at the reduced temperature, someone will still get burned if they spill coffee. The only "safe" temperature is one that won't burn at all (lukewarm or room temperature), but then the product is useless. Likewise, car companies could build cars that are impact-proof. But they'd cost $200,000 and drive like a tank.
posted by pardonyou? at 12:31 PM on December 22, 2004

People have always griped about frivolous lawsuits in America, and the chances of a damages cap standing up on appeal would have to be pretty tiny.

Unless, of course, ... no, nevermind, I'm not going to threadjack.

That's my xmas present to metafilter! Yay! :)
posted by socratic at 12:32 PM on December 22, 2004

Likewise, car companies could build cars that are impact-proof. But they'd cost $200,000 and drive like a tank.

You got that off Law and Order. J'accuse!
posted by norm at 12:35 PM on December 22, 2004

Following up on TedW's point about who files the most frivolous lawsuits. I'm betting if there is any kind of reform, it won't apply to corporate entities.
posted by MetalDog at 12:39 PM on December 22, 2004

I read a really incredible article about the Stella case a year or two ago that I really tried to find to post but couldn't. Basically, the jury was outraged by McDonald's corporation lack of humanity. One piece of testimony that was very convincing was a McDonald's Human Factors employee who told the jury that one or two people being sent to the hospital a year was not statistically significant. Also, there were loads of cases before hers.I think the jury tried to penalize McDonald's for ONE day's coffee profits.

After reading that article, I could never think of the suit as frivolous. It's just a story conservatives like to point to to support their 'culture of victimization' argument. They get away with it because it sounds so ridiculous.
posted by xammerboy at 12:46 PM on December 22, 2004 [1 favorite]

I found the article (from the Wall Street Journal). Read this and decide if the Stella case was frivolous or not.
posted by xammerboy at 12:53 PM on December 22, 2004

I know McDonald's kept its coffee hotter than competitors, but that alone doesn't establish negligence
The suit should have been thrown out because, as a good lawyer would have pointed out, you can't really call that stuff coffee.
posted by weapons-grade pandemonium at 12:56 PM on December 22, 2004

I know McDonald's kept its coffee hotter than competitors, but that alone doesn't establish negligence
In fact, her suit should have been thrown out because, as a good defense lawyer would have pointed out, you can't really call that stuff coffee.
posted by weapons-grade pandemonium at 12:58 PM on December 22, 2004

Bottom line:

* All Stella wanted is her medical bills paid.

* Tort Reform is not the same thing as damage caps.

* The only real winners are the lawyers.

* Although judges theoretically have the authority to toss cases without merit, it clearly doesn't happen often enough.
posted by ilsa at 1:00 PM on December 22, 2004

I'm suing MetaFilter because the Preview button is identical to, and adjacent to, the Post button.
posted by weapons-grade pandemonium at 1:02 PM on December 22, 2004

The law and the specifics of any one case can be pretty complex. To think that someone can fully understand a case based on a paragraph blurb or based on the most salient "outrageous" highlight is rediculous...

The McDonald's coffee case is a prime example of that... If I were going to start a "Stella Award," it woudn't be for the most frivolous lawsuits -- it would be for the most misunderstood lawsuits...
posted by chasing at 1:04 PM on December 22, 2004

Just don't give me a real gun beside a Taser.
posted by weapons-grade pandemonium at 1:04 PM on December 22, 2004

You got that off Law and Order. J'accuse!

J'nie! I got that as a person who used to represent auto companies in product liability cases.
posted by pardonyou? at 1:20 PM on December 22, 2004

I've read that article before and neither the cited evidence nor the godawful writing style convinced me the case had much merit. No, it's not the single most frivolous lawsuit on the planet, and McDonald's would have been wise, moral, and PR-happy to have simply settled out of court for medical costs, but I don't see how they were legally obligated to do so.

I prefer old ladies to McDonald's. I honestly, truly have sympathy for her burns. And McDonald's has oodles of cash. But that does not a case make.

As ilsa put it, the lawyers are the real winners here.

(Idle thought: what if McDonald's let the case go through to discourage future cases against them? With the idea that by the end she would become a laughing-stock. Her victory was rather Pyrrhic.)
posted by Sticherbeast at 1:23 PM on December 22, 2004

An excellent case can be made that the award was outrageous

As I recall, most of the damages she received were punitive. That is, they weren't to compensate her for her injury/hardship/whatever, but were to punish McDonald's for wrongdoing. I may be misremembering but the non-punitive damages were just enough to cover medical/legal costs. On this basis I have a hard time seeing how the award was outrageous - if a company like McDonald's is in the wrong, the only way to get it to change would be to impact its bottom line, and this is what punitive damages do. And in fact, McDonald's (+ the rest of the industry) did change - they don't keep their coffee as hot, and those (slightly useless) warning messages appear on practically every coffee cup you can buy. A decision against McDonald's would have been practically pointless without fairly large punitive damages.
posted by advil at 1:23 PM on December 22, 2004

and those (slightly useless) warning messages appear on practically every coffee cup you can buy

Slightly useless? In what way are they useful?
posted by Sticherbeast at 1:26 PM on December 22, 2004

I apologize in advance for this, but a thought just popped into my head:

What are the burn rates from McDonald's coffee now as opposed to before they changed their brewing temperature? Would there be any way to differentiate between the difference from the temperature versus people being more careful with their coffee?

If people are burning themselves less (or with less severe burns) as a result of a lower temperature, then my attitude towards the case would soften.
posted by Sticherbeast at 1:33 PM on December 22, 2004

Tom Tomorrow's cartoon about the McDonald's coffee incident.
posted by jeffmshaw at 1:35 PM on December 22, 2004 [1 favorite]

I know McDonald's kept its coffee hotter than competitors, but that alone doesn't establish negligence

Hotter than others, no.

Hot enough to destroy human flesh on contact, yes. If I'm selling you what I claim is food, it should not destroy your flesh when you touch it.

In this case, hot enough to partly melt the lid to the cup, IIRC.

Even at the reduced temperature, someone will still get burned if they spill coffee.

Burned as in redness and stinging or mild blistering is one thing. This killed flesh.
posted by ROU_Xenophobe at 1:46 PM on December 22, 2004

Tom Tomorrow's cartoon about the McDonald's coffee incident.

Hah. I don't know how I missed that before. Thanks.
posted by The God Complex at 1:46 PM on December 22, 2004

pardonyou?:

Sigh. Here goes, nice and slow:

After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. However, McDonald’s refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald’s callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.)

The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck’s attorney, S. Reed Morgan, the jury heard the following evidence in the case:

1. By corporate specifications, McDonald's sells its coffee at 180 to 190 degrees Fahrenheit;

2. Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;

3. Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;

4. The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;

5. McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail;

6. From 1982 to 1992, McDonald's coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;

7. Not only men and women, but also children and infants, have been burned by McDonald's scalding hot coffee, in some instances due to inadvertent spillage by McDonald's employees;

8. At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;

9. Witnesses for McDonald's admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald's required temperature;

10. McDonald's admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

11. McDonald's witnesses testified that it did not intend to turn down the heat -- As one witness put it: “No, there is no current plan to change the procedure that we're using in that regard right now;”

12. McDonald's admitted that its coffee is “not fit for consumption” when sold because it causes severe scalds if spilled or drunk;

13. Liebeck's treating physician testified that her injury was one of the worst scalding burns he had ever seen.
On top of that , the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior “callous.” Moreover, “the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque (where Liebeck was burned) is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds , the margin of safety has been increased as a direct consequence of this verdict.” (quotes from an archived copy of The Recoder and The Center for Justice & Democracy)
posted by ShawnStruck at 1:51 PM on December 22, 2004 [54 favorites]

I believe that this thread establishes conclusively that, despite their protestations to the contrary, and their attempts to defuse the inevitable debate, the overseers of the "Stella Award" named their award poorly.
posted by mr_roboto at 1:54 PM on December 22, 2004

Thank you, ShawnStruck. I have become weary of posting the facts about this whenever someone pipes up with it again. I do not doubt that our society is excessively litigious, but Stella Liebeck's case is not evidence of that.

Something about the story seems to press the "urban-legend" button which produces horror-movie music inside people's brains.
posted by Peach at 2:23 PM on December 22, 2004

The "Stella Awards" were so named to take advantage of people searching for the term on Google. Duh.
posted by kindall at 2:26 PM on December 22, 2004

Shawnstruck's posting was informative and persuasive far far far beyond the Wall Street Times article.

Yay Shawnstruck.
posted by Sticherbeast at 2:28 PM on December 22, 2004

As this thread is now purely about the Stella case, can any of you good knowledgeable folk explain why McDonalds wanted to sell coffee that's so damned hot in the first place?

Surely the risk of injury to the customer outweighs any kind of competitive edge of having hotter coffee than the next fast food store?
posted by simcd at 2:28 PM on December 22, 2004

Hotter water meant that they got better extraction and more bang for their buck, if memory serves.

STELLA! STELLA! Sorry,...

I'm not sure why HD wanting to trademark the sound of their motorcycle would be seen as frivolous or trivial, though. That sound is part of their brand and/or image.
posted by fixedgear at 2:49 PM on December 22, 2004

Hotter water meant that they got better extraction and more bang for their buck, if memory serves.

IIRC, it was to allow the coffee to sit longer before it had to be thrown out..
posted by Critical_Beatdown at 3:09 PM on December 22, 2004

I still find fast-food coffee too hot, and now I go inside to put lots of creamer in it.
posted by davy at 3:22 PM on December 22, 2004

Looks like astroturfing to me. A lot of these cases have some sliver of merit in them - and that's enough to make it a matter for a court.

Stephen Joseph: Well look at that, an individual-filed lawsuit designed to scare and change behavior. Aren't only corporations allowed to do that? No mention in the "article"! Make him pay the court costs, but not any of Krafts unless it actually goes to court. The RIAA and MPAA would squeal if the cost of preparing for a court case that never went to court was recoverable from the would-be frivolous plaintiff. Their businesses largely depend on the continuous making of frivolous threats to sue.

Cole Bartirimo: On the face of it, it is highly unlikely that he would have had a major league baseball career, but the school's decision to forbid him from participating in extracurricular sports apparently because--if "because" is the correct word, seeing as it implies causality--he was the subject of a fraud case, was stupid. To punish the school, he should get ( ${major baseball league career earnings} - ${average career earnings} ) x ( {population of major baseball league players from his home state} / {population of that state} ). My guess, about $10,000.

David Hanser: The problem here is with secrecy agreements. The judgment of a court should never be secret (although details that might lead to a person's safety being compromised, like Hanser's address, should be redacted). This includes settlement conditions, and once the lawsuit is started, the court should have to approve the contract of settlement. Many settlements look like contracts entered under duress, and the secrecy provision only reinforces that impression.

Wanda Hudson: "nearly" 100% responsible for her own predicament. But not. Let's say, 90%, 'cause that storage shed attendant really is supposed to check that no person (or stray cat for that matter) has sneaked into the shed before it gets closed. And they should be looking in the storage sheds maybe once a week, just to make sure no-one's running a crack lab in one or something. And it really, really should have locks that are openable from the inside, even if that sets off an alarm in the process. So, out of a $1,000,000 award ... gee, that's $100,000!

Doug Baker: A person has the right to sue a sitter for the loss of a dog, but should only recover what a "reasonable person" would spend on the search for the dog and then on replacing it. That is, the dogsitter's fee, the cost of three ads in the paper, the typical cost of a wormed and spayed pet dog from a pet shop, and, because a dogsitter is a special case of "looking after goods" in that they look after a beloved pet with great sentimental value, some amount of punitive damages, say 10% of a dogsitter's annual business turnover. That'd be less than $2,000, all up.

City of Madeira: If the taser were so badly designed that it feels exactly like a gun butt and operates with a gun trigger, the city should collect and then some. But this is unlikely - my guess is that the city's police training model is crap, and qualification with the gun consists of rapidly drawing the gun, standing in isoceles stance, and firing a tight group of shots at a stationary target; and qualification with the taser consists of taking your time and when you are ready, tasering another trainee. Here, have a badge.

Properly trained cops operate under a "use of force" model where they have to carry a range of appropriate weapons and are trained to draw the right one, normally from a separate place on the utility belt, so the muscle memory gets ingrained. For instance, I want the taser, so I reach around and to the left and unclip the clip (because weapons that are drawable easily by offenders during melee are bad), and I have the taser, a little box. Officer Noreiga's action is due to a "glitch" in how human muscle memory works - she was thinking "taser", reached down to her belt (which was probably twisted due to her position in the front of the car), grabbed the gun, and the "draw the gun and fire" memory took over. Obviously she hadn't spent enough time drawing the taser, especially from awkward positions. This action should have occurred during her training, when she should have been trained to subdue suspects kicking up a fuss in the back of the squad car. But people make mistakes, and this is why the City of Madeira has insurance against its officers' mistakes.

Incidentally, plainclothes officers' accoutrements are the source of an ongoing debate in law enforcement circles: if they only carry a concealed gun, then their ability to use appropriate force (like a taser, or capsicum spray) is limited. But if they carry a utility belt's worth of stuff, then they are so suspicious-looking that they might as well be in uniform anyway. This is less of an issue for undercover officers because of the greater danger they face, but it's still an issue.
posted by aeschenkarnos at 4:06 PM on December 22, 2004 [2 favorites]

After posting, it occurs to me that if Cole Bartrimo was serious about becoming a major league baseball player, he could have joined a non-school-based club, for adults. If he's good enough to be a major league player, he'd shine even among people older, bigger and more experienced.
posted by aeschenkarnos at 4:09 PM on December 22, 2004

43 posts and nobody's mentioned smoking!?! If you can get a payout for smoking cigarettes which give you lung cancer, then why not for hot coffee which scalds you?
posted by runkelfinker at 4:36 PM on December 22, 2004

As an unrepentant but ex-smoker, I appreciate your feelings, runkelfilter - I don't blame tobacco companies for any harm I did to myself through years of smoking... but I think the focus of these cases has been about tobacco companies selling a product they were well aware is addictive and physically harmful while lying through their teeth about both of these qualities. There is a weird arbitrariness and disproportionate nature to these individual cases, though. However, if you want tobacco litigation injustice, what really gets my blood boiling is the way states sued the companies on the basis of the public health costs and proceeded to squander the money in various excesses of lousy fiscal policy.
posted by nanojath at 8:50 PM on December 22, 2004

Whenever I see something that reminds me of this (Caution: Hot!), I like to read the instructions on a pack of toothpicks.

I keep forgetting to make an appointment to see Wonko the Sane.
posted by Eideteker at 9:41 PM on December 22, 2004

Can any of you good knowledgeable folk explain why McDonalds wanted to sell coffee that's so damned hot in the first place?

Because in focus groups people say they want their coffee hot - steaming hot. The costs of lawsuits were coldly calculated as a part of the expense. That was part of the reason behind the jury's decision - McDonald's, aware of the problem and even expecting future suits, was refusing to listen.
posted by xammerboy at 10:07 PM on December 22, 2004