McDonalds' scalding coffee case

There is a lot of hype about the McDonalds' scalding coffee case.  No one is in favor of frivolous cases of outlandish results; however, it is important to understand some points that were not reported in most of the stories about the case.  McDonalds coffee was not only hot, it was scalding -- capable of almost instantaneous destruction of skin, flesh and muscle.  Here's the whole story.Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonalds' coffee in February 1992.  Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drivethrough window of a local McDonalds.After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.)  Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin.  A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas.  She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.During discovery, McDonalds produced documents showing more than 700 claims by people who suffered severe burns from its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of the burn hazard to its customers from serving coffee at 185 degrees as opposed to the industry standard of 135-145.In its pre-trial discovery responses, McDonalds’ claimed that, based on a consultant’s advice, it stored its coffee at between 180 and 190 degrees fahrenheit to “maintain optimum taste.”  (McDonald’s actually used special holding pots which held the coffee under pressure to prevent it from evaporating off at the near boiling temperature.)  At trial, McDonald’s corporate representative admitted that he had not evaluated the safety ramifications of serving coffee at this temperature.  Additionally, there was conflicting evidence that suggested the real reason McDonald’s brewed and stored coffee at such high tempature was to increase profits because the company was able to brew the same strength product using less coffee grounds using the higher tempatures.  Other establishments sell coffee at substantially lower temperatures, and home coffee makers generally produce coffee at 135 to 140 degrees.On cross examination, McDonald’s Corporate Representative also admitted:

• A burn hazard exists with any food substance served at 140 degrees or above,
• McDonalds coffee, at the temperature at which it was served to customers was unfit for human consumption because it would burn the mouth and throat, and
• Despite the fact that burns would occur 100% of the time for any person who actually drank the coffee at the temperature served, McDonalds had no intention of reducing the "holding temperature" of its coffee.

The Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds.  Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially.  Thus, if Ms. Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.At trial, McDonalds defended it’s extremely high temperature coffee by claiming that customers buy coffee on their way to work or home, intending to consume it there. However, the company’s own research showed that customers intend to consume the coffee immediately while driving.McDonalds also argued that consumers know coffee is hot and that its customers want it that way.  However, the company admitted its customers were unaware of the increased tempature of McDonald’s coffee or that they could suffer third degree burns.  The company also admitted that a statement on the side of the cup was not a "warning" but a"reminder" since the location of the writing would not warn customers of the actual tempature of the coffee or increased burn hazard.How Much Money the Jury Really Awarded & How Much Ms. Liebeck          Actually ReceivedThe jury awarded Ms. Liebeck $200,000 in actual damages.  [Think 8 days in the hospital and 3 skin graft surgeries to repair 3^rd degree burns of the inner thighs, genitals, and buttocks.]  The award was reduced to $160,000 because the jury found Liebeck 20 percent at fault in causing the spill.Punitive DamagesThe jury found McDonald’s grossly negligent because of its actual knowledge of the extreme risk of burns caused by the excessively hot coffee and failure to lower the temperature.  [Remember the 700 prior burn claims that McDonald’s lost at trial or paid settlement money to the victims without changing the coffee temperature.]  The plaintiff’s lawyer argued that McDonald’s had proven 700 times before Ms. Liebeck was burned that it would not going to change a thing unless someone made them.  The Plaintiff’s attorney therefore asked the jury to take away one week’s worth of profit that McDonald’s made on coffee.   The jury awarded Liebeck $2.7 million in punitive damages [about two days of McDonalds' coffee sales].However, the trial judge reduced the jury’s punitive damages award to $480,000 (equal to three times the actual damages)  The trial judge reduced the punitive damage award based on prior appeals court rulings despite the fact that he specifically found McDonalds' conduct “Reckless, Callous and Willful.”Did the Jury System Work?Post-verdict investigation found that, after the case was over, the temperature of coffee at the local Albuquerque McDonalds dropped to 158 degrees Fahrenheit.How Much of the Jury Award did Ms. Liebeck Eventually Collect?No one will ever know the final ending to this case.  The parties eventually entered into a confidential settlement.  All the public knows is that the parties settled the case somewhere between $0 and $640,000.00As Paul Harvey would say: Now you know the ‘Rest of the Story.’

Common Question Answers

Here are the answers to some very common questions.Q.    "What should I do if I am in an accident?"A.   Talk to an experienced trial attorney as soon as possible. You need specific advice for your individual situation if you have been involved in a serious accident.Q.   "What will it cost?A.   Our office provides free initial consultations. If we can’t help you, there is no charge. If you hire us, we work on a ‘contingency’ fee basis, which means we don’t get paid until you do. Mike Love & Associates, LLC advances all litigation expenses up front and you don’t have to pay anything unless we win a successful verdict or settlement on your behalf. Call us at (936) 632-2000.Q.   “Why do I need a lawyer?” or “Why do I need a personal injury trial lawyer?”A.   The short answer is: 1) to avoid pitfalls, 2) to identify issues that might not be obvious to a non-lawyer, and 3) to know that you have a trained professional on your side.To illustrate the point, consider that a trained personal injury attorney should know that as many as 29 separate insurance policies/coverages might apply in the following simple accident. In “Vehicle 1” are a 16 year old driver, and her two friends (both minors). The car belongs to the driver's grandmother. Assume our 16 year old driver pulls out from a stop sign (perhaps without looking as well as she should) and has a wreck with a speeding pickup truck.  [Vehicle 2] The pickup driver borrowed the truck from a friend and was making a delivery for the driver’s boss at the time of the accident.Its unlikely a 'non-personal injury" lawyer would see 29 potential insurance coverages under these short facts, but there are that many possibilities.Its grandmother’s car so her liability insurance covers the granddaughter as a permissive driver. However, if the 16 year old has her own car (and policy), her policy becomes ‘secondary’ and provides additional liability coverage. Because the driver is a minor, her parent’s auto insurance policies also apply. If her parents are divorced and have separate policies, they both provide additional insurance coverage for their daughter. (That makes four potential liability policies that may cover our driver so far)If grandmother also has PIP insurance (personal injury protection) and/or UIM (uninsured/underinsured insurance) coverage, it provides additional coverage to everyone in grandmother’s car, including the driver. The PIP coverage covers all occupants regardless of fault in the accident and the UIM would provide additional coverage if the liability coverage of the ‘at fault’ driver(s) was insufficient to cover the damages.Likewise, if our driver (or her parents) have PIP or UIM coverage, it would provide additional coverage for the occupants of our car. As for the underage passengers, if they or their parents have PIP or UIM coverage on their auto policies, those policies would provide additional coverage to each of those minors (although it would not provide coverage for anyone else in the car).Finally, there are many potential sources for insurance coverage that might cover the pick-up truck driver’s liability. Obviously, any insurance policy on the truck applies. However, if the driver has a policy on his own vehicle, it becomes ‘secondary’ additional coverage. Likewise, since he was performing a delivery for his employer, he should be covered under his employer’s auto policy. Most businesses also carry what is called a ‘general liability’ policy and ‘umbrella’ policies that provide additional insurance coverage over and above the auto liability policy which should be confirmed in the event of a serious accident.  This makes a total of 29 potential sources of insurance coverage for the occupants of vehicle number 1.If the facts warrant, a trained personal injury attorney would also examine whether or not the traffic signs were compliant with state law and design specifications. He or she might also investigate potential products liability claims if an injury was caused by a failure of the car’s safety features, seatbelts, air bags, etc.Q.   "Other than calling a lawyer, what are other ‘good ideas’ if I have been involved in an accident?"A.   Understand that with the shock of being in an accident, the rush of adrenaline, and simply with the way the human body works, it may take a few days to really know if you have been seriously injured. For example, many spinal injuries can take months to become symptomatic following a car accident. Therefore, it is important to take down basic information about the facts of the accident.  Police officers usually do a good job recording information, but they don’t always write down the names of every witness. Sometimes witnesses leave before the police get there, or leave before the police write down their names. You should always write down the name and phone number of all witnesses. It might be important later. If you have a camera, even if only on your cell phone, take pictures. Don’t bother trying to get detailed pictures of the damage to your car at the scene, that can be done later by your attorney, the body shop, or the insurance company. Take pictures from a distance that shows the position of the cars in relation to each other and other objects at the scene like a sign, driveway, or building. These signs or landmarks can later be used to create a scaled diagram of the accident if needed. Likewise, a picture showing impact debris of the other person’s car in your lane, is 100 times more important than a close up of your smashed bumper.Q.   "Is there anything special I should keep in mind when seeing my doctor?"A.   Yes. Make sure that you tell your doctor all symptoms you are experiencing. Make a list of your symptoms and any questions you may have to take to any appointments.Even though you feel it is “no big thing” now, any thing from dry mouth to headaches, dizziness, or hyperventilation may be a sign of something more serious. Anything that is out of the ordinary is a symptom and should be reported to assist your doctor in making an informed diagnosis.  For example, a tingling in your fingers, or weakness in your arm could be the sign of major disruption to the disks in your neck.Q.   "How long do I have to make a claim?"A.  Every state has what is called a “statute of limitations” for different types of claims which sets deadlines for filing suit. If you fail to file suit before the deadline you lose your right to be compensated for your damages. In Texas, the deadlines can range from a few months to many years. For example, in most personal injury cases, the statute of limitations is two years from the act that caused the damage. (Date of the car accident for example) However, if the claim is against a governmental entity (if you were hit by a city bus for example), you must give notice to the city or state within 6 months or you lose your claim. Most breach of contract claims have four years from when the contract was broken to bring a claim, but a bank can wait six years to sue you on a consumer loan.  [Perhaps banks have better lobbyists than accident victims.]You might have heard that a child’s claim doesn’t start to run until he or she turns eighteen. This is true.  However, the child's medical bills are the legal obligation of (and claim of) the parents which means the two year statute of limitations applies to the child's medical bills. Bottom line, the time you have to make a claim varies widely based on the type of claim and the state where the action or event occurred. This is one of the reasons you should speak to an attorney sooner rather than later.Q.   "What do I do when the insurance company for the other side calls me?"A.   Always be polite. However, it is almost always better to ask the insurance company to send you their contact information in a letter and to let them know that you are in the process of retaining an attorney to help you with your claim. Once you hire an attorney, all communications should go through your attorney.Q.   "When do I not need a lawyer?"A.   You might not need a lawyer if you were in a relatively minor accident, you are sure you were not injured, the insurance company for the at fault driver has accepted liability (fault) and already given you a rental car, and you either 1) know what your vehicle damage is worth or 2) you have taken your car to a repair shop that is dealing directly with the insurance company. If you have decided to handle your claim on your own, some general advice I can give is let the body shop handle the repair claim. They are used to dealing with the insurance company. If justified, add in a claim for the ‘diminished value” of your car. (A new car that has been wrecked and repaired is not worth as much as a new car that has not been wrecked.)  Therefore, the insurance company should pay the repair bill plus the difference between what your car was worth before the wreck and what your car is worth as a “repaired” vehicle. Finally, don’t sign a ‘release of all claims’, which also applies to potential personal injury claims, if they are only paying to repair your car.Q.  "Why does the other driver's insurance company refuse to pay my medical bills?"A.   Probably the biggest reason most people decide to call a lawyer after being in an accident is the fact that the insurance company for the driver that caused the accident ALWAYS refuses to pay any medical bills or lost wages unless you are immediately willing to settle your entire claim upfront.Obviously, this puts the injured person in an impossible situation. How can you possibly settle your claim when you don't even know how bad you're hurt, how long you will be off work, if you will need surgery, or how much it will cost? One of the most common questions we get from people who start off trying to handle a claim on their own is "Why does the insurance company refuse to pay my medical bills?" Especially when they know it was their driver's fault. The answer is sad ..... but simple.The insurance company knows that if you can not afford to go to the doctor, you will not be able to prove you were hurt in the accident and they will not have to pay you anything. Likewise, if they help you and your family by paying your lost wages while your off work, you are much more likely to be able to afford medical treatment. Again, the insurance company knows that if you have medical treatment, you can prove you are hurt, which means they will have to pay more money. They know that if you can not afford medical treatment ... or the light bill, then you will accept pennies on the dollar for your claim out of desperation.An experienced lawyer can almost always predict what an insurance company will do. Its really simple actually. The insurance company will always do whatever saves them the most money. Unfortunately, with the insurance company, fairness is seldom the deciding factor.So now that you know the bad news ... what do you do about it if you have been hurt in an accident that was someone else's fault? First, understand that the other drivers' insurance company is not your friend. The adjuster's goal is to 1) try and avoid paying anything, and 2) if they have to pay … to pay as little as possible, and 3) delay, delay, delay. Remember, the big insurance companies collect premiums in the billions and cover losses in the hundreds of millions (if not billions). The interest on that kind of money is phenomenal. Every day they can make you wait is more money for them.So, if you are hurt, do not wait on the other side's insurance company. Go to the doctor as soon as possible. KEEP GOING TO THE DOCTOR for as long as you still have problems. Each time you go back to the doctor, tell him or her exactly what symptoms you are having. And, my advice to all of my clients about the best question to ask your doctor is this: "What next?" In other words, if you are still in pain, or still having problems, still can't get back to work after a couple of weeks, you need to be telling the doctor "This isn't getting any better" and "What is our next step in treatment?", "What are my options, or tests to determine what is wrong?" and, "Is there a specialist that I need to see for this condition?"STRONG WARNING HERE ..... Referrals to specialists are critical if you are suffering from an ongoing injury. However, if you are to this point on your own and have still not consulted an attorney, seriously consider calling someone now. The reason I say this is related to what I mentioned above, insurance companies look to medical documentation to establish whether you are hurt or not (really more of whether you can prove you are hurt or not).  Here's the problem, there are many qualified specialist out there. Doctors normally work on what's called a reciprocal referral basis. In other words, Dr. Smith refers all his hurt back patients to the Dr. that sends him OBGyn patients.Here's the problem with that arrangement, defense attorneys and insurance companies have 'hired gun' specialists in every area that they use as 'expert witnesses' in their big cases.  In every town of 40,000 people or larger, there will be at least one or two neurologists, and orthopedic surgeons that are c0mmonly used by defense lawyers and insurance companies to 'review medical records' and say the patient is not really hurt, or more commonly, not hurt when their drunk driver ran the red light and broad sided your car.The last thing you need when you have been in an accident, is to have your well-meaning family doctor refer you to the insurance companies hired gun!! Unfortunately, unless you are a trial lawyer who knows the doctors in your area, you have no way of knowing who to avoid. If you have been seriously injured and are at the stage where it is time to start seeing specialists, I would strongly urge you to talk to an experienced attorney that is familiar with the doctors you need to avoid.For answers on how an attorney can help you get medical treatment if you don't have health insurance, see my post titled "How your attorney can help you get medical treatment."Our firm represents injured people all over the state of Texas and partners with top law firms across the country. If you are outside the state of Texas and need a referral to a top P.I. law firm in your area, we can gladly help you find someone close to you.Mike LoveMike Love & Associates, LLCCourtHouse Plaza202 E. Lufkin Ave. Suite 201Lufkin Texas 75901(936) 632-2000TexasLawOffice.com

Serious 18-Wheeler Wreck in Crockett Texas

I will be presenting a paper on prosecuting truck wreck cases for the Texas Trial Lawyers Association in October and for the State Bar of Texas again in November. As I was sitting down at my desk going over my outline, I saw a news story of another serious 18-Wheeler wreck which had just happened outside of Crockett Texas.Based on information available from news stories, TX Dot, and law enforcement, the accident appears to have been caused by the negligence of the truck driver who crashed, obviously at a very high rate of speed, into a line of cars that had stopped for a construction site. My heart goes out to the victims and their families.Unfortunately, this tragic accident raises many of the complex and critical issues of investigation and evidence preservation that are common in commercial motor vehicle accidents. The accident will be investigated by the accident reconstruction team of the Texas Department of Public Safety. The troopers investigating the scene should take detailed measurements and document the scene through the use of scaled diagrams and photographic evidence. This will be helpful in determining the cause of the accident. However, much more is needed to protect the rights of the victims in the case.In this case, driver inattention and/or impairment are almost certainly a major cause of the accident. This raises the question, why would a professional truck driver be so distracted that he would drive full speed into a line of parked cars. In my experience, this type accident usually occurs because of driver impairment (drugs and/or alcohol) or extreme fatigue (often caused by driving ‘on duty time’ in excess of the maximum legal limit). In this type of accident, it can be critical to move quickly in order to preserve all evidence of the underlying cause of the accident.FMCSA regulations require the trucking company to immediately perform a drug alcohol test of its driver in an accident involving a fatality, or in any injury accident where the driver was also given a citation. Unfortunately, many trucking companies neglect, or refuse, to drug test their drivers after an accident of this type unless an attorney is immediately retained and files pleadings with the court seeking to force the required tests. Likewise, most modern commercial trucks have on board computers referred to as ECM (electronic control modules) which can contain critical information regarding the operation of the truck such as speed, RPM, braking forces, and even the number of hours the engine was in operation prior to the accident. ECM data will be lost if the truck is not secured, and the ECM downloaded prior to the truck being put back into service or sold for parts.Finally, the driver’s “hours of service” logs where he or she is required to record all driving hours, on duty hours, and off duty time may contain critical evidence of the underlying cause of the accident. Despite the fact that federal and state law requires all driver logs to be kept for 180 days, these logs have a tendency to ‘disappear’ if they contain evidence of a driver working or driving in excess of the legal limit. A law firm experienced in prosecuting 18-wheeler cases will move immediately to secure and preserve all relevant evidence. Hopefully, the victims in the Crockett accident case will be represented by competent legal counsel to protect their rights.Mike LoveMikeLove@TexasLawOffice.comMike Love & Associates, LLCCourthouse Plaza202 E. Lufkin Ave. Suite 202Lufkin Texas 75901Attorneys representing injured victims in 18-Wheeler accidents seeking additional information to assist them in pursuing claims on behalf of their clients in 18-Wheeler or other commercial motor vehicle accidents can contact the law firm of Mike Love & Associates, LLC to request free copies of Mr. Love’s CLE papers on the subject of Trucking Litigation including: Trucking Litigation: New Strategies From Behind Enemy Lines, and Trucking Cases: An Inside Perspective Requests can be emailed to welledge@TexasLawOffice.com or call (936) 632-2000.

Parking Garage Collapse Injures Two Workers

A partially built parking garage collapsed in February at University Hospital in San Antonio, injuring two construction workers, one critically.  Occupational Safety and Health Administration (OSHA) is conducting an investigation on the collapse.  Emergency air horns alerted 120 other workers, who fled from the collapsing structure, according to MySanAntonio.com. The garage was being erected near the intersection of Medical Drive and Wurzbach Road at the time of the construction accident.Zachry Vaughn Layten is the company overlooking the construction project, which is part of a $900 million expansion at University Hospital.“The garage project is shut down until we have completed an independent analysis of what happened—and can be assured that it won’t happen again,” said Mike Webb, vice president of facilities development and project management for the University Health System.Observers of the construction accident reported hearing two loud crashes.  Jeff Johnson, Project Executive for Zachry Vaughn Layten, says that 12 to 15 concrete columns collapsed in the construction site accident.  They apparently crushed downward, and then caused the garage to collapse onto it, which would explain why witnesses heard two crashes.  The columns were approximately 6 to 7 stories high.One board member from the University Health System asked Webb if he thought they were pushing too fast on the expansion project, trying to get it done on time.“We’re moving as fast as we can, as safely as we can,” Webb replied.Officials will not have a clear answer as to the cause of the construction accident until some of the debris is able to be cleared.“When today’s failure occurred, Development Services Department immediately dispatched its building inspections supervisor to the site in order to determine the cause of the failure,” said T.C. Broadnax, San Antonio Assistant City Manager. “DSD has indicated that a failure of this nature is either a failure in structural design or it is a failure in the construction process.  At present, they do not know if it was a design or construction failure.”“There is no one person who knows what caused this,” Webb continued. “That is why we’re bringing out the forensic engineers.  We don’t want to speculate and put things out there that may be rumors.”

Commercial Truck Accident in Texas Claims Life

A commercial truck accident in Texas on May 1 took the life of one man, according to KLTV.com of 7KLTX in Texas, an ABC News affiliate.  The victim has been identified at 58 year-old Jerry Ray Smith of Omaha.  Smith’s truck reportedly crossed the centerline and struck an 18-wheeeler, according to a Texas State Trooper.Smith was driving his 1999 Ford F-150 in the early morning on Highway U.S. 259 in Morris County at the time of the 18-wheeler accident.  According to officials both Smith and the commercial truck driver, Jared Woosley Wright, 28, were wearing safety belts.Both White and Smith were transported to the Good Shepherd Medical Center.  White received treatment for a knee injury suffered in the 18-wheeler accident and Smith was pronounced dead at the hospital.