CC, you're again assuming the conclusion that 180 degrees is dangerous because it's "too hot." The marketplace clearly thought otherwise. Even if one accepts the questionable premise that McDonald's coffee was a materially different temperature than that of other coffee vendors, the fact that McDonald's safely sold billions of cups of coffee shows that the coffee was viewed by its consumers to be a desireable temperature. (And now that Starbucks is regularly getting sued for its one-in-several-million cases of coffee burns, it puts the lie to the idea that there is something unusual about the McDonald's temperature.)

Now, perhaps we as a society should decide to ban hot coffee because the costs outweigh the benefits of providing a beverage that over a hundred million Americans desire to consume. But that's a decision that should be made by legislatures rather than by random juries.

The idea that lack of a warning was the *cause* of Liebeck's injuries is simply insane. Once one stretches the idea of proximate cause that far, your excuses for the clothing manufacturer simply don't fly. You're still dodging the simple fact that it's possible to design clothing that protects against coffee spills. So what if "Gore-Tex isn't an everyday fabric"? In 1991, it wasn't an everyday occurrence to have a gigantic warning on coffee cups, because the universal assumption was that people weren't so idiotic as to think that they could spill coffee on themselves painlessly. If you're making a cost-benefit analysis that it isn't worth it to put Gore-Tex on everything, well, by the same principle, it isn't worth it to reduce the temperature of coffee, because consumers have demonstrated that they prefer hot coffee.

I need more data for your product P hypothetical. I can think of several instances where there's no question in my mind that the manufacturer should not be liable: P = gasoline, for instance.

P.S. See Gary Schwartz, "The Myth of the Ford Pinto Case", 43 Rutgers L. Rev. 1013 (1991).

Re point 1: Would the cloth affect temperature? I don't have a clue about the science, but I would guess the temperture would fall slightly in cloth. Anybody ever test that?

CC/Ted --

Ted raises an important point; ultimately, however, it would be for the fact-finder to decide. Which is what happened in the McDonald's case.

Well done. The definitive take, in my book.*

von

*'Course, my book's a thin paperback of the Harlan-romance variety -- but in cyberspace, who could know?

Ted -
180* is dangerous because it caused third-degree burns. That millions of people are able to drink coffee without sustaining third-degree burns does not mean that 180* coffee is not dangerous or that circumstances which manifest that dangerousness are not foreseeable.

McDonalds had notice of the dangerous quality of its coffee, to the tune of 700 cases. And McDonalds coffee burned Liebeck. Not Starbucks', not Burger King's, not anyone else's. It was certainly foreseeable, then, that people would sustain serious burns from McDonald's coffee.

I fail to see what Starbucks has to do with it. It might also be foreseeable that someone would be seriously burned from Starbucks coffee. But whether nearly all coffee would cause burns or nearly none would, McDonalds' coffee DID cause burns, and they had plenty of knowledge prior to Liebeck that it would.

For purpose of the risk-benefit product liability test, it doesn’t matter whether consumers buy products. If this were true, anyone could avoid liability for any product by saying, “look, a bunch of consumers bought it.” Indeed, your argument means that even if a company deliberately made a product dangerous, an absolute defense would be that consumers bought it.

Now, most states do have a “consumer expectations” test as well. Here, what consumers “expect” the product to do is relevant, but that isn’t proven by mere numbers of purchases.

This case is pretty much a garden-variety tort that most companies are able to avoid by simply not skimping on packaging. McDonalds was trying to save money and they got “burned.” What is a interesting, (and, I think, good) is that McDonalds was able to parlay a litigation loss into a public relations victory by: 1) appealing; then 2) settling; 3) spending quite a bit more money on public relations. Even though they settled, everyone in the country has a (false) impression of what this case means, and the evil lay people talk about it constantly. This is a thing of beauty. Awhile ago, CC linked to a an article which said that McDonald’s spin on the issue had made it as a “fact” into European graduate publications!

CC: The claim that the sweatpants exacerbated Liebeck's injuries comes directly from the ATLA propaganda sheet on the subject.

Poon: First, as I note on overlawyered, 700 complaints are not 700 burns. Second, the number 700 is definitive evidence that the coffee is not *unreasonably* dangerous, because it means that the odds of the coffee causing a complaint are 1-in-24-million, or about 1/30 of the chance of getting struck by lightning in a year. That coffee can cause a third-degree burn only makes it *dangerous*, but that's not reason to impose liability: it just means that coffee, like gasoline, turpentine, car batteries, lawn mowers, kitchen knives, toaster ovens, matches, and thousands of other household products, is capable of causing injury if one isn't careful in using it.

As for what Starbucks has to do with it, the plaintiffs' bar regularly lies and says that McDonald's was held liable because their coffee was "unusually" hot, but Starbucks serves their coffee at the same (or even hotter) temperature -- which is no surprise, because that's the temperature coffee-drinkers like to have their coffee.

Ted, How does the source of the claim about the sweatpants change whether it is true or not. Or are you one of those people who use “trial lawyer” as a slur? If you are, I like you. There is no more evil a person on earth than one who does not do “transactional” or “commercial litigation.” The founding fathers did not intend the commoners to have access to the courts, because, by nature, their injuries ARE their fault. Just think, if this old woman had some class, she wouldn’t have been at McDonalds in the first place! So, she was at fault the moment that her income dipped below $850,000/year!

Secondly, just because injury is infrequent does not mean that the risk is great. Personally, because I favor personal responsibility, I am willing to tolerate a 45% fatality rate in most consumer products. The people who are against personal responsibility think that a 45% chance of dying is too high.

Anyway, just because there are relatively few injuries do not mean that the chances of the injuries happening in certain circumstances are lesser or greater. In fact, a lot of these “frequency” studies are misleading, because real Americans have health insurance and the health insurance companies don’t bother to trace the causes in all instances. (I actually think that failing to have health insurance means that you are not a good American, and in a way, I think this failure supports terrorism, but that is another story.)

Ted, then you say that the Plaintiff’s bar lies. I mean, I like insulting lawyer who work for common scum as much as the next guy. There is no more evil a lawyer than someone who will represent the interests of commoners who are injured. Commoners have ruined my country! Anyway, you will note that: 1) you have not presented any proof of what temperature Starbucks serves its coffee at (please give me a url on this); 2) Starbucks has always used different, more secure lids, so can you please address this issue as well. Since you said that someone “lied” you will have to show that: 1) their remarks were taken in context (so you have to address the “lid” argument); and 2) they did so intentionally.

Finally, I also note that neither group of people with a vested interest in the case has taken steps to obtain the court files, scan them in (as much as possible). This is probably good because little people wouldn’t understand it, and they are probably better off being fed slogans.

Um, Taint, you neglected to mention that "only girls bring frivolous personal injury lawsuits anyway."

You're slipping.

Otherwise, good points.

Taint:

1. I don't understand the point you're trying to make. It was CC who disputed the fact of the sweatpants; I was noting my characterization of the fact was identical to the official line of the side he supports. Perhaps if you weren't so focused on snark, you might be able to fairly evaluate the substance of my critique.

2. As for Starbuck's coffee temperature, you're welcome to check the Overlawyered.com archives, where I've documented multiple lawsuits brought complaining that Starbuck's serves its coffee too hot. Similarly, you can google the Usenet newsgroup alt.coffee's FAQ, which recommends a higher temperature for optimal coffee than McDonald's uses. Simply put, good coffee is hot.

3. ATLA's webpage on the case repeats the false claim that McDonald's coffee was unusually hot.

4. What do you think the court files show that I'm not accounting for? I think I can trust the self-interest of ATLA to make the strongest case possible for McDonald's liability. And if you think I've presented nothing but slogans, you haven't read what I've written.

5. I think it's fair to say that there's a difference between a 45% chance of fatality and 0.000004% chance of a complaint, a smaller fraction of which reflects a non-fatal injury, a smaller fraction of which reflects a third-degree burn. By comparison, you have a 0.000143% chance of being struck by lightning and a 0.000110% chance of dying in an oven range fire this year, two eventualities I'm sure you don't give a moment's worry to. (Source: www.lightningsafety.noaa.gov; Consumer Product Safety Commission.)

Poon:

"180* is dangerous because it caused third-degree burns. That millions of people are able to drink coffee without sustaining third-degree burns does not mean that 180* coffee is not dangerous or that circumstances which manifest that dangerousness are not foreseeable.

McDonalds had notice of the dangerous quality of its coffee, to the tune of 700 cases. And McDonalds coffee burned Liebeck. Not Starbucks', not Burger King's, not anyone else's. It was certainly foreseeable, then, that people would sustain serious burns from McDonald's coffee."

Congratulations, you've just held all auto manufacturers liable for all accidents because they know cars going over 15 mph can be dangerous.

Clerk:

I think this will be even more fun the fifth time around.

Okay, so you still have not told me how you know Starbuck’s temperature. However, as I said the temperature of other coffee is not relevant under the “risk-benefit” test, it is only relevant under the consumer expectations test.

Also, if you are going to cite the ATLA’s website, provide 1) a specific URL; 2) the language; and 3) the contrary language would demonstrate that it is a “lie.” (If you want you can show how it is not only wrong, but deliberate.) Providing vague references to websites does not prove anything, and in such a hotly (no pun intended) contested issue, does not aid your argument at all. This is sort of like saying, “There are well-known facts out there on the web that Scott-Peterson is a cold-blooded murderer. Look at CNN.” Doesn’t cut it. Maybe you don’t like lawyers, but lawyers have this annoying habit of presuming that something is made up if it isn’t specifically cited.

I think that the court files would show the degree of knowledge the McDonalds had about the danger of their product, and the reasoning behind the award of punitive damages. As some people have pointed out, it seems that McDonalds was caught in various lies throughout this trial, and the court files would reveal how this happened.

I am not entirely sure what the “self-interest” of the ATLA is, so perhaps you could tell me.

What slogans did I present? I asked for citations.

You are correct that I don’t think there is a difference between 45% and .0000(etc)43%. The acceptable amount of risk is one for the jury, and if I was on a jury I would find that a 45% fatality risk is acceptable for many products. (This does not apply to non-human-generated lightning). Perhaps you want to tell me what, if you had you way, would be an acceptable risk factor. When you are articulate you theory (perhaps as a mathematical formula) try and take into account the following variables: The value of the person; the extent of their injuries; the price of the product; the profit to the manufacturer; the price per unit that it would have cost to fix whatever problem caused the injuries.

Taint, you're asking questions that are readily answered by reading what I've written on the subject on Overlawyered and PointOfLaw. If you don't have the courtesy to do that before challenging my position, I'm not going to play the game of having the conversation go in circles. It's frankly offensive. ATLA's position on the subject is quite public, has been cited by me in the past, and instead of making accusations, you can look it up and determine for yourself that I'm not misrepresenting it.

Well, I have to admit that having never been offended by anything myself, and I never understood the concept of “offense.” Indeed, it seems to mean just about anything the “offendee” wants it to mean. I don’t see what is such a big deal about referring someone to a specific cite. Look at CC’s post. For every proposition he provides a specific cite, along with, if necessary, a parenthetical summary of why he is citing it. If I have any doubt about his proposition I will check it out, and if I still disagree, I will call him on it. (He does the same for me.) I don’t see why asking someone to do this is “offensive” unless you define “offensive” as “not acceding to your wish that everyone agree with you.” (“Offensive” also seems to be used by women to describe men who hit on them or are unattractive, but I don’t think that is your use.)

Now, it seems that you run some other blog somewhere or other. Therefore, unlike others who must comb through Lexis or Westlaw to find a given point, you can simply provide a URL of your own website which would prove your points. This isn’t that big a deal.

I have never seen ATLA’s position on “the subject.” Indeed, I hardly think that ATLA takes retrospective a policy position on a single case that was settled, anyway. I mean, imagine if Congress did that. (Well, actually, they came close when they passed a resolution relating to the 9th Cir.’s first decision in Newdow, but even then it can be argued that Newdow was greater than just Mr. Newdow and his wacky family.) Anyway, if they have come to a position on the “the issue” (where the issue is the outcome of a settled case), I am sure that you could link to a page on their website in which they explain it.

Now, it seems that most blogs do not require bluebook citation.

For example, if you were to cite the ABA’s position they took on a anti-gay-marriage constitutional amendment, you could simply say: The ABA has taken the position that a constitutional amendment prohibiting gay marriage would “Usurp the
traditional authority of each state to determine who may enter into civil marriage and to
determine when effect should be given to a civil marriage validly contracted between two
persons under the laws of another jurisdiction.” http://www.abanet.org/poladv/testimony/108th/crcl_summ030304.pdf (testimony of president Dennis Archer). The ABA takes no position on individual state laws prohibiting same-sex marriage. Id. at 2.

Alternatively, you can cite to U.S.S.C.A.N., but I will admit that most people have no idea on how to use it.

Now, why can’t you do the same for the ATLA’s “position” on a single case.

I am chagrined to see that my post has somehow devolved into a discussion of ATLA's position on the Liebeck suit. Given the length and thoroughness of what I wrote, it would be nice if tort reformers got around to dissecting my post rather than hammering away at the American Trial Lawyer's Association.

For what it is worth ATLA's take on the case my be found here and here. Although Ted Frank refers to one or both of these as a "propaganda sheet," casual inspection reveals otherwise. I would not necessarily vouch for their contents in their entirety, but rank propaganda they are not. And whatever their contents about the role of Liebeck's sweatpants, I don't think Frank's extrapolation therefrom (i.e.,that if McDonald's was liable then the clothing maker is subject to the same liability) has any merit for the reasons that I have already detailed above. That, rather than ATLA, is the real the issue isn't it?

As for the alleged uniqueness of the temperatures at which McDonald's is said to have served its coffee, it is difficult to find accurate information. Initially, we need to make one critical distinction. Coffee is typically brewed and stored in preparation for serving at very high temperatures (i.e., in excess of 180 degrees Fahrenheit). But while many establishments almost certainly brew and store coffee at like temperatures, that says nothing about serving standards. So we have to be careful to focus on serving temperatures, not those involved in brewing and storing in preparation for serving. (We also have to be mindful of the fact that coffee typically cools substantially once poured from the container in which it was originally stored. Relatedly, independent variables can affect the rate of cooling. So it is difficult to even make assumptions about serving standards on the basis of storage temperatures.)

Ted Frank keeps asserting that McDonald's serving temperature is (or was) the norm. I can find no information on Starbucks's website concerning coffee serving temperatures. However, this site states that "[m]ost US restaurants serve coffee at 135 to 140 degrees Fahrenheit." Similarly, a study of the rate of cooling of coffee conducted by two engineers designated 143 degrees Fahrenheit as the "safe drinking point." Obviously, these temperatures are much lower than the 180 degrees at which McDonald's served its coffee to Liebeck, but whether these lower temperatures reflect pre- or post-Liebeck practice, or both, remains unstated. If anyone has more or better data, I would love to see it.

On this score, Frank only makes the vague statement that:

As for Starbuck's coffee temperature, you're welcome to check the Overlawyered.com archives, where I've documented multiple lawsuits brought complaining that Starbuck's serves its coffee too hot.

Oddly, Frank became incensed when Taint requested some specific links or citations. I think that there is a reason that no specific references are made by Frank. Consider, for example, this Overlawyered post:

It's an entry that seems like self-parody for this site—a Madison County lawsuit over spilled coffee—but the lawsuit against Starbucks is true. It differs from the McDonald's case in that it involves a defective cup, but the alleged second-degree burns show that, once again, the plaintiffs' bar's claim that McDonald's coffee was unusually likely to burn was somewhat fictional. (Brian Brueggeman, "Lawyer: McDonald's coffee case different", Belleville News-Democrat, Jan. 27)

The problem is that the actual story does not show anything of the sort. The Madison County suit involved second degree burns, not third degree burns. The story conveys no details about the temperature of Starbuck's coffee, the length of the exposure to the coffee, or any of the relevant circumstances surrounding the spill or burn other than the allegation of the defective cup. How Frank finds vindication of his claim that McDonald's coffee was not any more dangerous than any other establishment's product on the basis of this cursory story escapes me. Much the same thing can be said of this Overlawyered coffee case post concerning this story as well. While this theme of Frank's allows him to continue debating ATLA or the plaintiffs' bar in general, rather than me, I really do not see its relevance to the products liability analysis that I have offered.

Finally, a recurring theme among tort reformers (including Frank) seems to be that the Liebeck case is an egregious example of legislation-by-jury. Why if consumers want coffee served at 180 degrees Fahrenheit, then where does Liebeck get off grousing about third degree burns to her vagina? The market has spoken and all that jazz. Of course, as with most invocations of "the market" and consumer preferences, no actual data is cited. Tort reformers just posit that if McDonald's was doing it, it must be because the consumers wanted them to do so. The only data that I have actually seen cited is a study from the University of Califonia at Davis that found that "most people prefer coffee at 161.8 degrees Fahrenheit," not 180. In order to achieve this, servers would have to take into account a host of variables. I have yet to see any evidence that McDonald's thought-process was this thoughtful. Tort reformers just assume it was; funny how the same charity is never afforded the supposedly irrational jurors who held McDonald's liable.

This debate is a perfect example of overanalysis by legal experts leading to nothing other than mass confusion of the issues. As CC correctly references in his original post, a 1st year law student studying torts for the first time could properly analyze the liability aspects of this case and be done with the matter.

UCL, I don't understand why the difference between positive and normative analysis escapes you. If first-year torts classes are really teaching that Liebeck appropriately recovered (I see the definitive Farnsworth & Grady's Torts: Cases and Questions at 512-13 is agnostic), that's a serious problem with first-year torts classes in American legal education, but that's a different story.

Taint, I don't know why it's so difficult for you to click my name and find my website. Really now.

CC, you missed this story of third-degree burns from Starbucks. Angela McMahon of the Bunn-O-Matic case also had third-degree burns. Moreover, Liebeck's burns were unusually bad because she, unlike most people when doused with hot coffee, allowed herself to baste in the hot liquid rather than taking steps to dry herself or remove the absorbent sweatpants that were holding the liquid against her skin. I grant that this is an example of an "eggshell skull" plaintiff, but the vast majority of McDonald's complaints did not involve third-degree burns. Starbucks coffee isn't any cooler than McDonald's coffee, and the Wall Street Journal article everyone likes to make reference to quotes a "coffee connoisseur" as saying that McDonald's was serving coffee at the appropriate temperature. (Even the plaintiffs' lawyer's investigator found three other fast food restaurants that served coffee as hot as McDonald's.)

CC continues to misrepresent my argument. I've never said the sweatpants manufacturer should be liable. I've said that every argument for liability for the coffee manufacturer is equally applicable to the clothing manufacturer, and every argument against liability for the clothing manufacturer is equally applicable to McDonald's, and this shows the weakness of the argument for liability for McDonald's. CC still hasn't addressed the question whether he believes the sweatpants manufacturer is entitled to summary judgment, and if so, on what ground that does not entitle the coffee manufacturer to summary judgment. If CC's position is that the clothing manufacturer is not entitled to summary judgment, but that someone who sues the sweatpants manufacturer is entitled to a jury trial on the subject, and he just doesn't think a jury would be so silly as to find the clothing manufacturer liable, that's one thing. That's an internally consistent and intellectually honest argument. I think it's poor policy, but that's a different question. However, to date, CC's arguments have either been entirely ipse dixit or avoided the question by changing the premise.

Why do I know that some customers prefer coffee sold at 180 degrees? Because billions of times McDonalds and Starbucks and other vendors' customers voted with their pocketbooks and purchased coffee sold at 180 degrees. A customer who purchases a coffee that's served at 161.8 degrees will not be able to drink that coffee at the preferred temperature of 161.8 degrees -- especially if they add cream or sugar or don't drink the coffee immediately.

Finally, CC, I raised ATLA because Taint took the conversation in that direction, and then without any basis essentially accused me of making up the story. I think it's fair to characterize ATLA's take as propaganda (look up the definition): they make assertions against McDonald's that contradict the facts of the case (as reported by the WSJ) and if you click ATLA's supposed link to the WSJ story, they provide instead a summary of (perceived) pro-plaintiff facts from the 1994 article and omit the pro-defendant facts from the same article. Indeed, if you read ATLA's sheet and only ATLA's sheet, one might think the only reason for McDonald's to refuse to pay Liebeck's medical bills is stubbornness.

UCL, What is your point? I don't know how to "feel" the law. Every legal issue in the world is capable of detailed, in-depth analysis. In fact, to say that something is "obvious" or "common sense" usually indicates a lack of understanding.

Ted, It *is* hard to click on your name because, as CC points out: none of what you say is actually on your blog, and it is bad form to not cite specifically. To me, if someone presents vague authority, it usually means that they are making it up. If anything you said was true you would be able to: 1) cite to specific publications; and 2) quote the actual text from them. You did not. This is why I presume that you are completely and unable to do it.

Again, you mentioned ATLA. I asked for proof. You failed to present it. You characterized it as propaganda. Your "definition" or propaganda is "look up the definition." Then you fail to explain how it fits your undisclosed definition.

Now, without any direct evidence, you have said that: 1) it would be useless to present the entire care file; and 2) the "facts" of the case as reported by the WSJ and ATLA conflict. Your resolution of the matter is to declare the ATLA to be spewing propaganda. How do you figure this? Does the WSJ now have a presumption of accuracy?

Anyway, perhaps you mean to say that because McDonald's motivations for not immediately paying the plaintiff are largely irrelevant to the legal analysis, that any mention of them is "propaganda." But what? There are a number of reason to pay or not to pay people who claim that you injured them, but a failure to pay does not constitute punitive damages in a product liability action. It may in other actions, such as where the underlying obligation is to pay, but, that isn't the point.

(By the way, is any legal argument made the lay people propaganda? I have often toyed with the notion that all public speech can never be hearsay.)

What you are able to, however, do is tell the world that you are "offended" when someone dares question your viewpoint. This might cut it for college girls but amongst lawyers it is even worse than telling a judge that the resolution is "obvious."

You also say that "first year torts" is being taught wrong. How do you figure? What cases should not be included in Prosser and Keaton on Torts. By the way, this book is currently edited by a certain professor who is quite competent, but also publishes one of those silly publications for the lay people which talk about tort reform without citing cases or any specifics and say that the law is not applied fairly to out-of-staters in some states. However, because they are talking to lay people they don't feel the need to provide specifics because, it is presumed, that a lay person does not deserve the specifics. Anyway, the lay people eat that stuff up, which, I guess, is good.

You also seem to forget that the jury did apportion some of the fault to her. So maybe her failure to take immediate remedial steps is was introduced to the jury. However, the law differs on this issue between jurisdictions, and I don't know Texas law off the top of my head.

Also, the jury was free to apportion fault to the clothing manufacture. Likewise, McDonalds was free to implede them.

Mr. Frank:

I did not miss the additional Starbuck's case that your cite. The problem is that the Newsday link in it is busted, so I am unable to actually read anything about the case. I have looked for the story elsewhere on the web, but I have been unable to find anything on it. At any rate, even if I assume that the facts are precisely as you represent, I fail to see how a single case at a single Starbuck's can be taken as evidence of what Starbuck's generally does chainwide. It is logically just as possible that that single store is an aberration (much like McDonald's was alleged to be) in terms of coffee temperatures. As you requested, I looked at the Overlawyered posts, and I do not find them to be supportive of your arguments. So what other evidence do you have?

1. Starbucks coffee has caused third-degree burns. The higher-quality coffee-makers sold on Starbucks's website for home-use heat the coffee to 205 degrees, making it clearly capable of being served at the McDonald's temperature.
2. Liebeck's lawyer continues to litigate third-degree coffee burn cases.
3. The Bunn-O-Matic case involved third-degree burns.
4. A number of cases cited in the Bunn-O-Matic case involved third-degree burns.
5. The ANSI standard for serving coffee, cited by Bunn-O-Matic and Professor Brill, both of which you cite, agrees with McDonald's policy.
6. The Specialty Coffee Association of America, who Professor Brill cites, who you cite, calls for coffee to be held at 185 to 190 degrees.
7. Brill also cites "Nation's Restaurant News" for the proposition that the 135-degree temperature of home coffee-makers (heavily relied upon by the ATLA sheet as evidence of McDonald's perfidy) produces lower-quality coffee and is a function of the effort to keep coffee-makers affordable. A quick check of the web finds higher-priced coffee-makers that serves coffee at the correct, higher, temperature for yuppies willing to pay extra.
8. The 1994 Wall Street Journal article on the subject notes that Liebeck's attorney's investigator found three other (albeit unidentified) fast-food restaurants serving coffee at a high temperature.

I don't see why I needed to list all this evidence to avoid the accusations you're making against me: the majority of this is stuff you link to.

Also: what is this nonsense that my representation of the Newsday article--for which I give an author, an article title, and a date--is unverifiable? Why on earth would I risk my credibility by making a misrepresentation that could be easily refuted?

More evidence:
9. The June 4 American Lawyer article on Liebeck and the more recent Villegas case, referenced in my overlawyered.com article, also notes that Starbucks's official policy recommends serving coffee at the same temperature at issue in Liebeck. Liebeck's lawyer is quoted in the article as saying that's too high.

Furthermore, a three-second search for Janine Arslanian on google shows four other web pages quoting the same language from the Newsday story that I did. But you immediately assumed that I lied because Newsday wouldn't show you the article for free. Can you see why someone might take offense at that?

Mr. Frank:

I think that your responses are becoming completely histrionic. I have never accused you of lying. I simply noted that the Overlawyered link to the Newsday story was defunct, which it is, so I couldn't evaluate the particular story. I am not willing to take your word for various representations, but not because I think you are dishonest. Rather, in an adversarial engagement one does not take their opponent's reading of cases at face value, particularly in instances in which the opposing parties view both the facts and the law so differently. And the reasons for this are fairly obvious.

As an example, in one of your recent comments you cite numerous sources regarding coffee temperature norms. However, as I have already noted, the problem with many (if not most) of these sources is that they involve brewing temperatures, which do not really tell us about serving temperatures or norms at all. Given that you persist in extrapolating conclusions that do not necessarily follow from the facts cited, why on earth would I simply accept whatever version of events of a Starbuck's incident that you happen to put forward?

Frankly, however, this whole coffee temperature norm subdebate is yet another instance of debating ATLA rather than me. You'll note that my original post makes absolutely no claim regarding industry standards. And, off the top of my head, I am not altogther clear what difference it would make in terms of the elements necessary to prove up a products liability claim. A common industry practice that was determined by a jury to fail the overall risk-utility standard would still result in liability, notwithstanding the common usage of the practice. What is the legal relevance of the alleged fact about industry serving norms?

Taint states, "I don't know how to "feel" the law. Every legal issue in the world is capable of detailed, in-depth analysis. In fact, to say that something is "obvious" or "common sense" usually indicates a lack of understanding."

That statement is incredible. A lawyer who does not know how to "feel" the law is missing some terribly important instincts, unless he happens to live in a jurisdiction which resolves 100% of all civil cases through summary judgment motions. (As defense counsel myself, please tell me what jurisdiction that is so I can start studying for its bar now). And to ridicule the role of common sense in applying the law to a set of facts is equally amazing to me. Is it the role of us lawyers to interpret the law, a.k.a the will of the people, or are we too smart and intellectual to have to actually care about basic human instincts about the evolution of personal injury law?

What the entire overanalysis of this issue in this discussion is missing, is an acknowledgment that the law of torts in our nation is largely a product of democratic will. One person in this discussion mocked me because I show (apparent) ignorance of the distinction between positive and normative analysis of the law. Oh really? And what does the citizenry, which elects most of the state supreme and intermediate appellate court judges that define our common law, along with all legislators who modify the common law whenever they please, think about these distinctions between "positive and normative analysis"? I assume the person in question believes that these distinctions, if properly explained (better get started), will magically persuade the electorate to do away with products liability tort theory altogether, as applied to 180 degree coffee sold by corporations to elderly consumers who are seated in their vehicles with the engine running.

The reason I don’t know how to “feel” the law, is I can’t articulate my feelings about the law. Any initial impressions I have that are based on hunches are just my musings, and unless I can explain why I am right, I might as well keep it to myself. In fact, “feelings” and “instincts” have never convinced a judge, or another lawyer of the merits of your position. Only rarely do people tell judges, “I feel that this case is without merit and you should do what I say.”

Therefore, legal analysis will have to take the place of telling the world my feelings.

“Basic human instincts” about “personal injury law” are confused and it is generally for the lawyers to sort them out. I have never met a lay person who didn’t have contradictory thoughts on the subject and wouldn’t start equivocating and changing the mind when you point out that her argument makes no sense. In fact, I am happy to say that some of the confusion results from press releases that my firm wrote after losing.

I am not entirely sure that the majority of State Supreme Court judges and intermediate appellate court judges are directly elected. Many are subject to retention elections, but for the most part the citizenry are incapable of reading their written opinions, unless someone decides to put it into a press-release, and then it should be distorted.

It is all well and good that you feel that the law is driven by “the citizenry.” However, speaking to another lawyer, or a judge, or whatever and basing your argument on “what the people want” is hardly a rigorous approach. Instead, if you are going to make an argument you have to break down the legal concepts into the smallest possible units (which probably are based on popular conceptions of “right”) and then cobble them together into legal analysis. However, to just take a look at an issue and say “I think the people want X” is hardly analytical and won’t convince anyone of anything.

CC:

1. When you say you can't evaluate whether a Newsday story that I've directly quoted says what I say it says, you're accusing me of being untrustworthy. Indeed, you directly make that accusation in one of the quotes above. I'm properly incensed.

2. But perhaps it's a function of projection, because the sources I cite do talk about serving temperature, your assertion to the contrary. This is beneath you.

The legal relevance of the proper serving temperature of coffee is that (1) if 170-180 degrees is an inherent property of the coffee, then Liebeck should not have been able to recover on the basis of a breach of warranty, and (2) it demonstrates that the verdict is not just an aberration, but a complete breach of common sense -- which is why ATLA so intently pushes the fiction that it's an unusual temperature.

You acknowledge Bunn-O-Matic, but claim "Caution--Contents Hot" is inadequate. So what's the magic warning that would be adequate? A plaintiff knows that coffee is hot; a plaintiff seeks out hot coffee; a plaintiff knows to take care to avoid spilling coffee on oneself. What warning is legitimately needed?

Is Bunn-O-Matic wrong? What about Barnett v. Leiserv, Inc., 968 F. Supp. 690 (N.D. Ga.), affirmed without opinion, 137 F.3d 1356 (11th Cir. 1997)? Greene v. Boddie-Noell Enterprises, Inc., 966 F. Supp. 416 (W.D. Va. 1997)? Lamkin v. Braniff Airlines, Inc., 853 F. Supp. 30 (D. Mass. 1994)? Oubre v. E-Z Serve Corp., 1998 La. App. Lexis 1392 (5th Cir. 1998)? Huppe v. Twenty-First Century Restaurants of America, Inc., 497 N.Y.S.2d 306 (Sup. Ct. 1985)?

Mr. Frank:

I think that you are something of an "eggshell blogger." This isn't the first time that you have struck a pose of being terribly offended where this topic is concerned. See, e.g., this comment thread, in which you claim that my depiction of your arguments is "fairly insulting." Your own rather overdeveloped sensitivities are all the more pronounced given that you continuously insinuate that no one can make a principled case for Liebeck and that all those who defend it are schills for the plaintiffs' bar.

Your latest display of outrage, triggered by my unwillingness to accept your characterization of another, unrelated incident, borders on the absurd. The entirety of the Overlawyered post in question reads:

Janine Arslanian alleges "extensive and gross second and third degree burns to her right hand and arm" from a spill of Starbuck's coffee. Gee, it couldn't possibly be the case that the plaintiffs' bar misled us when they said the Stella Liebeck v. McDonald's coffee case (which we discussed Dec. 10) was unique because it was only McDonald's coffee that was hot enough to cause serious burns, could it? (Jamie Herzlich, Newsday, Dec. 30).

N.B. I'm not claiming that Arslanian's case is frivolous; that's not clear from the press coverage. If her allegation is that the cup is defective, rather than the coffee, it's a different case than the Liebeck case (though it's difficult to imagine scenarios where $10M would be appropriate compensation). But it does go to show that the claims that coffee doesn't burn people unless it's brewed defectively by McDonald's, and thus McDonald's coffee was "unreasonably dangerous", thus entitling a plaintiff who spills coffee on herself to recover from the vendor, were somewhat, well, false.

So you quoted a whopping 14 words from a story that you yourself confess isn't sufficiently detailed to even offer a tentative evaluation of the case (i.e., "I'm not claiming that Arslanian's case is frivolous; that's not clear from the press coverage."). Then you claim to be "properly incensed" because I refuse to draw conclusions from press coverage that you yourself acknowledge is awfully lacking in details.

As I noted, the link to the Newsday story is busted. The story in question appears to have been copied and pasted in toto here. I now reproduce it in full:

There's no use crying over spilled milk, but hot coffee is a whole other matter. In a case with echoes of a famous suit against McDonald's, a Glen Cove woman has filed a $10-million claim against Starbucks, alleging she was badly burned by coffee that leaked from the container.

On the morning of May 5, Janine Arslanian bought coffee from Starbucks at 5 School Street in Glen Cove, according to court papers.

The suit says that as Arslanian received the cup, coffee "leaked and flowed from the container on the bare right hand and arm ... causing her to sustain severe burns" and suffer "permanent injury and scarring."

The suit describes the injury as "extensive and gross second and third degree burns to her right hand and arm."

Arslanian would not comment on her lawsuit, and her lawyer did not return calls. A Starbucks spokeswoman said, "It is Starbucks policy not to provide details or comments on pending or current litigation."

That's it. I'm not sure what this story is supposed to prove exactly. I take it that you think that this demonstrates that Starbuck's also serves its product at the same temperature as McDonald's in the Liebeck case. First, I think that a single incident at a single Starbuck's only indicates that it served a single cup of coffee at Liebeck-like temperatures, and that's only if we take the plaintiff's allegations at face value. After all, unlike Liebeck, in which evidence was offered to prove up the temperature and the extent of the plaintiff's injuries, we are just relying on a preliminary press report where Arslanian is concerned. We might extrapolate from this single incident, but we would be doing just that: extrapolating.

Of course, your whole argument in this regard is quite an extrapolation. You seem to be proceeding from the assumption that if, coffee is generally served at "x" temperature in the service industry that it must be done so of necessity (i.e., that that temperature is an inherent and unavoidable quality of the product.) It's not at all clear that this is so. Part of a defective product claim is the requirement to show reasonable alternatives. Whether there is a reasonable alternative (i.e., less hot coffee) is debateable, and simple reliance on industry practices is not alone dispositive. If industry practices played the role that you envision, then industries could always avoid a product liability claim by the expedient of establishing a uniform industry practice. But, of course, a uniform product would not be any less defective by virtue of its universality (if there were reasonable alternatives).

As for the case law that you have cited, I printed off those cases (and others) days ago, but I have yet to read them. So I will defer comment for the time being. As for Bunn-O-Matic, which I have read, my initial inclination is to question why you view it as precluding liability in coffee cases. Judge Easterbrook's discussion was fairly tentative in light of the fact that the parties provided the court with precious little in the way of evidence in that case. See, e.g., 150 F.3d at 659. I note also that I think that you misread Easterbrook's opinion somewhat. Even he assumes (on the basis of his own research rather than evidence submitted by the parties) that coffee will be imbibed at around 150 degrees Fahrenheit, and that brewing, storage, and serving temperatures, while interrelated, or not synonymous. Id. at 658-59.

Ted,

It is common practice among lawyers not to trust another’s resuscitation of facts when the facts are in dispute. This is not necessarily because one believes that the other is lying, but because everyone knows that interpretations are subject to a number of subjective factors. Indeed, you are asking CC to trust your description of a newspaper article which itself describes something else!

You think that you have a right to be angry because someone dares to question your understanding of a text. If your view was correct we might as well just forget about all constitutional litigation. After all, if I were to tell you that a text says that gay people must be allowed to get married and there is an absolute right to smoke marijuana, then you MUST agree with me. After all, I am just telling what is in the text, and I am incensed that you don’t take my word for it.

Next, Ted, are you *sure* that in the McDonalds case, the plaintiff recovered under a “breach of warranty” theory. On what do you base this conclusion. Remember: you are the one who stated that you see the need to look at the court documents, but now you are referring to a specific theory that you claim was asserted by the plaintiffs. Therefore, I expect you to provide some form of specific proof as to what theories for recovery were asserted by the plaintiff.

Now, you mention “common sense” but you don’t define the term or even provide anyone withy any idea as to tell whether something is “common sense” so I will have to presume that you just are throwing that term without giving thought to what it means. (Though I will have you know that my old firm would issue press releases every time they lost claiming that a ruling defined common sense. They lay people at this up like candy.) In general, when someone says “common sense” they usually mean, “I disagree and I can’t explain why.”

Warnings go to the consumer expectations test. They are not probative under a theory of liability based on the risk-benefit test.

Now, you mentioned a few cases. You did not pin-cite any of them, nor did you provide parenthetical citations that would explain WHY you are citing them. (Notice how CC does this.)
Anyway, I figure I will indulge your need to make vague allusions to various cases.

As a starting point, I should not that McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir. 1998), was a US Court of Appeals case for the seventh circuit interpreting Indiana law. Id. at 654 (“The McMahons have two theories of liability under Indiana law (which the parties agree supplies the rule of decision.”). However, Bunn-O-Matic was not under a warranty theory, they argued under the product liability theories that we have been discussing. E.g. failure to warn (which is a consumer expectations theory) and risk-benefit (a.k.a. inherently unreasonable dangerous).

Barnett v. Leiserv, Inc., 968 F. Supp. 690 (1997) was under Georgia law. This was actually under a warranty theory, and the court found that there was no actual “privity” between the manufacturer and the “victim” of the coffee. This is an actual warranty case. Why don’t you read it so you actually know what one looks like, because it is crazy to say that Bunn-O-Matic, a product liability case is “right” or “wrong” because another court rules in a similar way under a different theory.

Greene v. Boddie-Noell Enters., 966 F. Supp. 416 (1997) (Virginia law), seems to be a case where the plaintiff failed under a warranty theory to show that the product violated a “prevailing standard.” Indeed, most states, in their Uniform Commercial codes imply into every sale of goods a “warranty” that the product is fit for what it is normally sold for, and that it complies with the “prevailing standards.” Here, the Plaintiff didn’t really bother to show what any standards were. Of course, they still could have asserted a product liability theory.

Lamkin v. Braniff Airlines, 853 F. Supp. 30 (1994) (Mass. law). This was under a negligence theory. Not a warranty theory. Not a product liability theory. The plaintiff argued that the defendant negligently hired its employees, negligently trained them, and negligently selected a coffee maker.

You cite the case: Oubre v. E-Z Serve Corp., 1998 La. App. Lexis 1392 (5th Cir. 1998). This is just plain silly. Oubre v. E-Z Serve Corp. is not a 5th circuit case, it is a case from Court of Appeal of Louisiana, Fifth Circuit. The correct cite should be: Oubre v. E-Z Serve Corp., 713 So. 2d 818 (La. Ct. App. 1998). The plaintiff failed to show any dispute the standards in the industry, and they didn’t assert a theory under the risk-benefit test. Huppe v. Twenty-First Century Restaurants, Inc., 130 Misc. 2d 736 (N.Y. Sup. Ct. 1985) is about the same.

"Simply put, good coffee is hot."

Sir, my Iced Venti Mocha Latte and I humbly disagree.

I will, however, do my best to keep it out of my lap for fear of a frostbite claim.

Ted hardly needs me to defend him. Nonetheless:

1) Taint, for the purpose of the risk-benefit product liability test, it does matter whether consumers buy products. It speaks direectly to the "benefit" prong of the test. The only "benefit" of coffee is that drinkers enjoy drinking it. If McDonalds' coffee is "unusually" hot, as alleged, then the fact that billions of cups were sold is compelling evidence that consumers preferred it to the "usual" variety. That's the benefit, and it's one that defenders of the Liebeck decision simply ignore. (Now, you're free to argue that the choices of the scores of millions of people who have bought McDonalds coffee over the years don't reveal their preferences, but I think you'll have a hard time meeting the burden of proof on that claim.)

2) It's one thing to say that the acceptable level of risk should be one for the jury -- but not if you're going to allow the plaintiffs to argue to the jury that the mere fact that the company calculated the risk is grounds for punitive damages.

3) UCL, you were not mocked for not knowing the difference between positive and normative analysis, but for making an illogical argument which begged the question because it elided the difference between the two. Ted is saying, paraphrased: "Tort law should not permit recovery in cases such as this one." Your response was, "But anybody who takes Torts 101 can properly analyze this and be done." Torts 101 tells you what torts law currently is, not what it should be. What it should be is not a question which depends on Torts 101-style legal analysis.

And I think public reaction illustrates that if you put the McDonalds case to the vote of the "citizenry", rather than just twelve people locked in a room, you'd find them voting against this tort theory.

Yes, Ted does need you to defend him because he has stopped responding after people challenged him on his assertions.

“Benefit” in the tort sense of the word doesn’t mean “a lot of people enjoy it.” In fact, I can find no case in which your idea that the sheer number of people who buys something makes it more beneficial. You could, of course, simply argue that the good taste of the coffee a good thing to come from the heated coffee.

I looked for a case that even vaguely supports your point. I found none. (I happen to know of a couple of unpublished ones that support mine, but that isn’t fair.) Anyway, please provide me with one case in which a defendant was allowed to introduce sales figures to show the benefit of a product.

Finally, it is easy to say that a “trial by referendum” would go the opposite way that a jury did. Of course, in your world, the “citizenry” would not be privy to your factual and legal arguments. Now, I used to work for a firm that agreed with you, and all losses were spun in the popular press as being a failure of the jury system. (Even if we subsequently won on appeal or settled.) But, maybe it is time to make the whole country listen to an entire trial with all legal and factual arguments.

By the way, I am in favor of tort recovery only for people who can win an election, anyway. We never represented fat people.

I'm concerned about hese blithe appeals to the "marketplace" as proving that people like their coffee "hot". Personally, I don't care for McDonalds coffee. I find it pretty flat and tasteless and I tend to avoid it. But I have, on accation, purchased it. Usually this was while I was at a McDonalds and I wanted coffee to drink in preference to the other beverages on offer. I certainly do not want my purchases to be construed as constituting any approval of McDonald's serving methods or quality. It is simply convenience.

I don't go measuring the temperature of my "hot" coffee. But I'm quite certain that I would not drink any 180 degree beverage until it had cooled substantially. I normally cool coffee by adding an excess of milk to the cup. When I buy cofee (usually at a cart on the streets of NYC) I prefer the vendor to add the milk and suger (a "regular" coffee in NYC parlance) before handing me the cup. McDOnalds always hands a cup of black coffee with milk or half and hand and sugar on the side. I do sometimes purchase Starbucks coffee which usually sits in am insulated carafe and is substancially cooler than fresh-brewed coffee even before I "doctor" it.

As a result, I have no difficulty believing that 180 degrees is an unreasonably hot temperature to serve a beverage intended to be drunk "hot".

I'm not sure what this story is supposed to prove exactly.

Criminy. I said Starbucks is also being sued for serving temperature at the same temperature at McDonald's. You denied it. I cited to it. You denied it again. I pointed out the exact language showing that a plaintiff alleged that the Starbucks coffee caused a third-degree burn. You essentially accused me of making up the quote to justify the fact that you falsely accused me of failing to cite to it. I pointed out that several other bloggers quoted the same language and that your accusation is outrageous; I further pointed out multiple other sources--including sources you cited--proving the same thing. You denied it again; I was more specific again in showing that denial was wrong. Now that you've lost that argument, you're disingenuously claiming that I shouldn't have brought it up in the first place.

Can you see why I might find this (and taint's misrepresentations of my arguments and the caselaw) a waste of my time?

If I misinterpreted some caselaw be specific and tell me WHY. If you need to quote. Instead, you cite to cases without pin-citing, and without even saying why you are citing them. See, by not explaining why I am wrong you fail to provide any support for your argument. Instead, it seems like you just cut-and-pasted from some cases without actually reading them. If you read these cases, you would have told everyone, 1) what theories the plaintiff was proceeding under; 2) what showing the plaintiff made or didn’t made; and 3) what the court ruled. If you can’t do this, I will be forced to conclude that you never read any of the cases, and that my interpretation is correct, because 1) I did it; 2) you have no interpretation of these cases because you are unwilling or incapable of reading the very cases you cite to!

If you think that I am misrepresenting your arguments you MUST say why I did, otherwise, you are just whining. You have yet to do this and for this reason I think that you are just looking for excuses to insult people.