How A Lawsuit Over Hot Coffee Helped Erode the 7th Amendment(priceonomics.com) |
How A Lawsuit Over Hot Coffee Helped Erode the 7th Amendment(priceonomics.com) |
A sad example is provided by Texas. Protection against bad doctors was provided in Texas by three things: the Texas Medical Board, malpractice suits, and hospital managers. The legislature greatly limited the amount patients can win in malpractice suits, and they made it so hospitals cannot be held liable for hiring incompetent doctors unless the plaintiff can prove the hospital knew the doctor was an extreme risk and ignored this--and they made it so the plaintiff usually cannot get access to the documents that would be needed to prove this.
This shifted most of the burden of protecting Texans from bad doctors to the Texas Medical Board, which was not designed for that. It was more designed for licensing and ensuring that doctors keep with standards, not for investigating bad doctors. The Medical Board was not given any more resources to deal with this new and heavy workload, and so bad doctors could practice much longer than they would have been able to before the legislature decided to do their tort reform.
This article on the Dr. Christopher Duntsch case shows who wrong this can go: http://www.texasobserver.org/anatomy-tragedy/
For decades Texas juries were awarding so much money so often it became impossible for many high risk specialties, such as delivering babies (think of the downside versus upside), to get insured. In 2000 around a quarter of doctors in Texas were being sued for medical malpractice. Most insurance companies stopped writing insurance for doctors in Texas and the few remaining cooperatives faced bankruptcy. This is why both the Texas legislature and Texas voters (Prop 12) decided to limit damage awards in 2003 to what is now around an inflation adjusted $2 million per victim. Similar things happened in other states with California leading the way in the mid-1970s with a even more restrictive law (no inflation indexing - still the same $250,000 cap as 40 years ago)[1].
Remember the Texas lawyers and juries who have pretty much ruined the US patent system. I that who should an best police doctors? The Texas Medical Board seems like a pretty good approach: people with actual medical training and experience reviewing complaints about doctors. Maybe there is something better for getting rid of incompetent doctors than the Texas Medical Board (ideas pleae?) but unrestricted litigation proved unsustainable.
[1] http://en.wikipedia.org/wiki/Medical_Injury_Compensation_Ref...
"(12) "Noneconomic damages" means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages."
[1] http://www.legalmatch.com/law-library/article/texass-cap-for...
[2] http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm
I also would guess that the US would have a similar legal system, which allows for such defences from such claims.
It seems that if courts are paying out too much this is not an issue to do with people making frivolous claims and cashing in but with the way the judiciary is deciding on the claims. If it was more difficult for claims to be successful in court this would stamp out such claims instead of imposing monetary caps which don't allow for the flexibility to compensate each individual case.
I find it strange that the legislature is getting involved in an area which is really up to the judiciary to perform its function...
When it fails is when, as grandparent indicates, the bureaucracy (TMB in this case) wasn't given enough additional resources to handle the increased workload.
Come on that's not fair. Companies shop for the most technically mal-adept cohort to decide their cases, because they strategize that they can hire a more persuasive lawyer. The residents of East Texas didn't design the legal system that surrounds patent disputes. This is a weakness in the law.
I mean if you are happily awarding damages to heart surgeons who only save half their patients when the rest of the planet does not better, then the problem is in the jury box? no?
Without such penalties, there's a reduced incentive for administrators to notice that, say, surgeons are frequently leaving scalpels in patients. [1]
I get that people have an adverse reaction to plaintiffs striking it rich (not that they really are). But what tort reformers don't realize is that the perceived unfairness of jackpot lawsuits might actually be discouraging juries from using punitive damage amounts that would actually change corporate behavior.
We might get more appropriate incentives for businesses if we said, "Ok, the plaintiff gets made whole, even for pain and suffering, maybe the lawyers get paid, but after that, punitives go to the state." The state could use the funds to educate or prevent harms similar to whatever most of the lawsuits are about, or set up a fund to compensate others harmed by the most common dangerous practices.
It'd lead to damage awards that could actually change business behavior, fewer perceptions of unjust plaintiff enrichment, and a better balance sheet for the state or state programs designed to reduce the harms all at the same time.
[1] http://www.everydayhealth.com/healthy-living/surgeons-leave-...
On damages she would get around $10.000, perhaps 5x more if she is celebrity with connections. That is not much money even in here, house costs usually around $100.000.
I think US will have to give up right to sue in medical care. If you count expenses customers will still get better care. The amount you save on lawyers could go towards better care. And if doctors screws up, you will have good medical system to fix most damages, rather then going to court with some theoretical chances.
And what could prevent bad doctors? Make gross neglect minor criminal offense. Doctor could go to jail for couple of weeks and loose its license. If enforced this would filter out bad doctors pretty quickly. And it could also force real safety practices such as recording procedures and operation check lists.
Reliance on civil courts may sound attractive to the naive, but the lawyers and institutions involved, are just as single mindedly focused on their own personal gains, financial and in prestige, as either party to the original dispute. It's not that they are necessarily systemically partial to one side or the other, but rather that they are partial to making the fight as acrimonious and expensive as possible. As that is, after all, their "side."
Additionally, in Texas for example, tort reform has done nothing to limit costs of healthcare (though it has made malpractice insurance much cheaper, which makes life nice for doctors and their insurers.)
Also, the whole "greedy lawyer" trope is a wonderful bit of social engineering. Companies figure out how to save or make money while creating risk for consumers and bystanders, and its the lawyers that are greedy. Ford saves billions making a less safe car, and its the plaintiffs' lawyers that are greedy because they make money seeking compensation for the people that get hurt by that decision.
-"lawyers are greedy" trope isn't really true, most lawyers would prefer to settle than go to trial (trial is more profitable for the lawyer) because it's a satisfying win for themselves and their client, most lawyers weigh ethical considerations heavily
-"reputation systems" can be gamed, are difficult to interpret, are vulnerable to selection bias, and exclude people who are too poor to own smartphones and computers
I too am interested to know if this means that there are more bad doctors in Texas. Having a colleague try to take the surgical instruments from you during a surgery because you are so incompetent sounds like an extreme yet the hospital did nothin after that incident.
> The Texas Medical Center is the largest medical center in the world with one of the highest densities of clinical facilities for patient care, basic science, and translational research. Located in Greater Houston, the center contains 54 medicine-related institutions, including 21 hospitals and eight specialty institutions, eight academic and research institutions, three medical schools, six nursing schools, and schools of dentistry, public health, pharmacy, and other health-related practices. All 54 institutions are not-for-profit. The center exceeds one thousand acres (or 1.562 square mile) in size. [...] The Center is where one of the first and largest air ambulance services was created and where one of the first successful inter-institutional transplant programs was developed. More heart surgeries are performed in Texas Medical Center than anywhere else in the world.
(Ironically, the TMC came about through a tax dodge)
For 'frivolous cases' to actually hit trial months of depositions, research, and meditations have to fail. If a case actually goes to trial it's because one side feels so confident in their case that mediation is not an option.
As a side note, in insurance cases in Texas, the jury is not allowed to know that any insurance money has been paid. So in a situation where someone is hurt in an accident by another driver then sues for medical expenses, the jury is not told that the medical expenses (are often) already paid for by the carriers. They're also not told that, no matter how much money they award, if it falls under the civil caps on awards (in Texas) that the judge will automatically lower their award after they leave the court room.
I agree with most of those points. Yes, the jury does not know them, and that effects their decisions. Knowing those things would also effect their decisions. Because that's how decisions work. Therefore, the stance you must take is, which scenario will yield results which are more appropriate?
I assume the jury is also not told whether the defendant has liability insurance against the results of the very case being deliberated either, which is a point just as salient. To me, it should not make any difference whether someone had the foresight to insure themselves when being awarded damages.
For anyone curious, here's the origin claim as filed: http://www.siliconbeat.com/entries/Epinions.pdf
More info: http://www.siliconbeat.com/entries/2005/12/09/epinions_settl...
Interesting article.
the evidence does not show an epidemic
of frivolous lawsuits winning jackpots
It explores this very case and issues related to it.
http://dvd.netflix.com/Movie/Hot-Coffee/70167106?trkid=22233...
It was interesting to me because I had heard about it, or rather was told about it this lawsuit and what I was told and believed about that case was wrong for the longest time. This film explores how that PR effort started and how successful it was.
If the government proactively monitored product safety and responded to complaints, it would be able to shut down dangerous practices (and doctors consistently making bad decisions) before problems happen, and also engage in education so that businesses that aren't aware that their products could be dangerous can fix the problems.
If a someone is injured, it is reasonable for the government to pay for this to support the public, because otherwise getting the financial support the unlucky injured person needs depends on being able to afford a lengthy legal battle, and also on the business being unable to pay. In addition, some decisions are a trade-off (especially for doctors); for example, getting an X-ray might increase your chances of cancer, but might also detect a very rare disease; a doctor might reasonably decide, in the patient's best interest, that given the symptoms, the increased risk of cancer is not worth the miniscule risk of not detecting the disease. If the patient is then severely injured by the disease, should the doctor have to pay out? If the patient gets support from the government either way, then the question doesn't need to be answered. It is likely that malpractice suits encourage doctors to minimise the risk that the patient can prove a tort, rather than to act in the best interests of the patient - it is very hard to prove that a particular X-ray contributed to cancer later in life.
This is also fairer to businesses, because when a certain decision is unsafe relative to other practices but has a low probability of resulting in a lawsuit, most small or medium sized business engaging in the risky practice may never actually have the bad outcome happen, purely due to luck. If the government prosecutes unsafe practices, rather than the civil courts award punitive damages when unsafe practices lead to a bad outcome, businesses are discouraged or prevented from 'playing the lottery', and the desired public policy outcome of fewer unsafe practices is more directly achieved. Likewise, businesses that play it safe by industry standards but, through bad luck, have a bad outcome are not over-punished for being unlucky (this applies especially to doctors making necessary trade-offs).
Why would she settle for the SAME amount?! Makes no sense.
Lawyers will become as powerful in society as you let them become.
It sparked a tiresomely predictable debate about hot coffee, as happens every time this case comes up; there are always a couple thousand reader comments ranging from "She was stupid" to "McD's coffee is too hot, she deserved more money". I've read a lot of them and it does get repetitive.
As I see it, the Liebeck incident was unfortunate and tragic but does not represent a trend. This hapless woman appears to have been manipulated by an angry family into hiring a lawyer and blowing this up into a big case that took on a life of its own and caused her to be reviled by advocates of tort reform as a classic example of the legal system run amok. Others hailed her as a hero for the little people sticking it to the big bad corporation.
Yet, considering that McDonald's sells 10 million or so cups of coffee a day, 70 reports of coffee scalding a year seems like edge cases. Could it not be simply that there are 70 careless people a year? Much easier to believe than that somehow the coffee is leaping out of its cup and scalding innocent customers about 6 times a month, and they each should get $2.4 million from Mickey D's which after all is a giant corporation so "they can afford it".
Now every damn cup of coffee I buy comes with a little warning "Caution! The drink you are about to enjoy is very hot!" Well, hell yes it better be hot. I asked for hot coffee, and the hotter the better.
Once, in a coffee shop in Harvard Square, Cambridge Mass., a stupid young waitress managed to dump a decanter of very hot coffee onto my lap off the tray she was carrying. I got burned on the thigh very close to my genitals, it hurt, it blistered. I got over it. They didn't charge me for the coffee. Life went on. That's a case where it truly was "their fault". But I didn't sue them or anything.
I think in my case they could have apologized a bit more profusely, but then again, they don't apologize anymore because they figure that's an admission of guilt that you'll use against them in court. That's why Pennsylvania recently passed an apology law for doctors. Yes, they have a law now saying it's OK for docs to apologize without fear of lawsuit. The tort lawyers opposed the law. What a twisted world we live in!
There are numerous standard-form contracts (particularly in healthcare) in which that's not an option.
Though I would strongly argue to not agree to arbitration if you have any choice in the matter. If provided with a contract in which arbitration is a condition, strike and initial. It's now up to the other side.
Note the part of the sentence, "unreasonable amounts of money". That doesn't mean the lawsuits still don't happen, costing business owners thousands of dollars just to get them thrown out. Sometimes it's cheaper to throw the complainant a few thousand dollars, which they'll claim as a win, just to go away cause it's cheaper than going to court.
I was going to show two examples from my own restaurants but decided against it. You would not believe these were even considered by any attorney much less the judge who was willing to listen to them.
Anyone know how they choose their topics?
If I had gone into Williams & Sonoma and carelessly stabbed someone with a kitchen knife. Would that have been W&S's fault? It just makes no sense to me how we want to hold others responsible for giving us what we've asked for.
Liebeck was hospitalized for 8 days with multiple skin grafts. She asked asked McDonalds for medical expenses from the injury from the coffee and lost wages (<20k). McDonalds offered $800.
At that point she got an attorney. They tried to settle. McDonalds refused. In the trial it came out that McDonalds had more than 700 reports of medical injuries from the coffee that they were aware of. Their internal quality control manager reported that they recognized that they were posing a burn hazard to customers with the heat of their coffee, but that it was a minor concern that they were unwilling to adjust.
McDonalds admitted that not only were they burning customers who drank the coffee straight from the cup, many of whom needed medical treatment, but that this was something they were unwilling to change.
That's why the jury hit McDonalds with punitive damages of the profits of two day's sales of coffee (which the judge reduced). Through the whole process McDonalds was acting like a criminally negligent bully unconcerned with injuring customers. Punitive damages did correct this.
Starbucks coffee is not served anywhere near that hot. By their corporate guidance, the normal acceptable range of temperature for coffee served to customers is 145-165F. If you poured that in your lap, it would be very unlikely for you to receive third degree burns. The burn risk of water goes up very rapidly as temperature is increased above that. This is the entire point of the court case -- nearly everyone else in the country served coffee ~30-40F cooler than Mac, due to having found the risks too great, yet even after hundreds of complaints, MacDonalds decided to keep their temperature higher.
She initially asked for her medical costs to be covered. McDonalds declined, so she went to court.
Full thickness burns are not a trivial injury. She was at risk of death. Treatment is painful and takes a long time. She would have been left with scarring and perhaps loss of function - because a fast food chain didn't care about customer safety.
Do you have access to a thermometer? Try measuring the temperature of a cup of coffee that you make at home tree minutes after you've made it.
It's hard to blame them, too, given the facts of the matter; even the Priceonomics article considerably understates the severity of her injuries, as is common even in the most sympathetic recountings of the tale, because phrases like "external genitalia essentially destroyed" aren't pleasant either to write or to read -- or to imagine; of all the places on the human body where it's possible to sustain full-thickness third-degree burns, that's got to be the most awful. (Which says nothing of the expenses involved in surgical repair and follow-up care; given the extent of both which Liebeck's injuries required, I wouldn't be surprised to learn that her total medical expenses were pretty closely comparable to the total figure awarded her by the jury.)
Had I been on that jury, I feel certain I'd have argued for finding in Liebeck's favor from the start. Had you been on the same jury, perhaps you'd have argued otherwise -- or perhaps not; it's awfully easy to play Monday-morning quarterback on stuff like this, when everything looks so much simpler than it does from within the jury box.
This coffee was being over-brewed at higher-than-normal temperatures because the McDonalds franchise was being greedy and attempting to extract more coffee out of the grounds.
This exact same franchise had gotten past customer complaints about the dangerously hot coffee burning people.
I and my father have spilled decent amounts of normal temperature coffee on our laps in the car, it barely caused any burns at all, let alone third degree.
The coffee was excessively hot and the franchise was negligent.
Considering the likelyhood of people spilling coffee, it's not unreasonable to expect coffee servers to take that into account (just like cars are designed to take into account bad driving and accidents).
I'm sure they also took into consideration that Stella Liebeck originally asked for $20,000 for damages and had tried to negotiate several times before the case went to trial; she clearly went to some length to avoid this.
While handing over a live chainsaw is at best inadvisable, it is all the more so to throw a live chainsaw into the juggling pattern of a clown on a unicycle.
Detail often missed: she had a lid on the styrofoam cup, properly placed. It wasn't an open cup. The cup and lid were of low quality and, while they passed at lower temperatures, deformed at the serving temperature, enough that the lid popped off, causing the spill.
In addition to the serving temperature, one aspect of McDonalds's liability was the quality of the cups and lids: squeezing a coffee cup, with contents at the serving temperature, shouldn't cause the lid to pop.
Thankfully, coffee is still served at the same temperatures, and the only change was added a warning.
http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restauran...
I'm glad to hear that you made a full recovery from your minor-but-painful burn. I doubt you would be so cheery about it if the clumsy waitress had maimed you and left you on the hook for $10,000 in medical bills.
This is why the Liebeck case always causes such controversy: there's a substantial group of people who are absolutely determined to argue with a made-up strawman instead of the actual facts. I genuinely don't understand why.
There's a bit of a difference between spilling it on oneself and being spilled on by someone else. That's not a straw man argument at all. It's a tangential anecdote. Yes, indeed, had she caused me $10,000 in medical harm, it's possible and likely I would have sought compensation from her employer. But had I spilled the decanter on myself, which is the point of the Liebeck case, that would be a different thing entirely.
McDonalds admitted that not only were they burning customers who drank the coffee straight from the cup, many of whom needed medical treatment, but that this was something they were unwilling to change.
That is clearly not frivolous. She tried to settle. She was not looking for a big score. In the process of discovery the company was openly belligerent about their plan and willingness to continue to pose a public safety risk.
There's thousands of people cutting themselves with kitchen knifes every year too. So what? It doesn't make the kitchen knife manufacturer somehow liable if you cut yourself if they "knowingly" sell you a kitchen knife despite being fully aware of the thousands of injuries caused by them every single year.
All the stuff about how she was injured (emotive irrelevance), how other customers are also injured - is just an irrelevant distraction to the central fact that it was entirely her own fault and her own responsibility.
> “All I remember is trying to get out of the car,” Liebeck later related. “I knew I was in terrible pain.” She went into shock and her grandson rushed her to the emergency room, where she would undergo surgery and receive skin grafts.
She suffered full thickness burns. This is a significant wound. The burns were on her legs and genitals. That turns it into a medical emergency - rush to nearest hospital, let them stabilize you and send you to a different hospital that specializes in burns.
Also, the car was not moving at the time of the accident.
I am pretty sure that when granny makes coffee herself at home, she makes it at least as hot as McDonalds serves it. Whistling kettles and all.
In a country of millions of people doing stuff, sometimes the stars align wrong for someone, and they get hurt. It doesn't have to, and in fact rarely is, someones "fault." It wasn't granny's "fault" that this one time she fumbled the lid and spilled coffee. Given enough tries, sooner or later anyone would, as it is a positive probability outcome. But neither is the probability of it happening large enough to say McDonald's was "at fault" of something. Stuff happens. Sometimes nice stuff, sometime less so. No need to feed a lawyer army either way.
It's the same silly obsession with finding who's "at fault" that underpins the enormously inefficient (except for, again, for lawyers) "at fault" car accident insurance schemes in place in most states. Despite most accidents and other mishaps being the result of all manners of complicated, best modeled as random, factors. None of which are a specific party's "fault."
But of course, there's the old adage about most people ending up in law school, do so because they couldn't hack math well enough to ever get into the complex systems classes....:)
If I sell you shampoo with hydrochloric acid in it, and some gets in your eyes and you're permanently blinded, should I be held blameless because "obviously getting soap in your eyes hurts?"
But yet, iced tea and iced coffee both exist. The temperature required to make a substance has no correlation to the temperature it must be served at.
3rd degree life threatening burns? There is nothing obvious about that. This is not like a hammer but a gun without a safety one, given to people in a drive through. Most could put those in their pockets and between the seats, but some will at some point pull the trigger. One can argue about the idiocy of those that pulled the trigger and shot themselves, but it is just as well valid to argue about why is the safety off by default. Now think of safety as the temperature value.
> Texas has some of the best doctors in the world and an innovative healthcare community
This doesn't answer the question.
I would honestly be very, very surprised if they didn't end up working substantially better for medical doctors than for most other service providers. As, at least in my experience, very few people who decide to though the effort of becoming a doctor, do so with the express intent of scamming their way to riches, the way many Ebay and Amazon sellers do.
I am sure that in some selected cases, an aggressive tort system could be construed to have provided a better outcome, but at what systemic cost? Massive over treatment of every conceivable low probability condition, to stave off grounds for lawsuits. Doctors scared of going with their hunches, and instead of doing what they feel is the best for the patient, doing what they expect will be easiest to defend if the outcome should be less than ideal.....
Doesn't forcefully injecting an expensive and completely unconcerned outside party, into an arrangement between two parties that are outcome concerned, strike you as an inefficient use of resources? Why not, instead, try to find ways to make the two concerned parties understand each other better?
He said 195 - 205 °F, which would do that kind of damage, pretty much instantly. That said, I find it unlikely that most people actually enjoy coffee that is that hot. When coffee burns your tongue and you have that annoying (thankfully, temporary) lack of taste for a couple days, that's typically around 180 °F.
Perhaps I misunderstood you, but it sounds like you just defined away the possibility of systematic, correctable jury error, the very thing we have eg rules of evidence for.
> Who by the way must also be the voters?
No it was really "the public" I meant. Voters, jurors, us in other words. If Texas juries in one county are making patents a laughing stock, it really is upto the rest of us - either in that county, or in juries in other counties and countries, to change that. Or perhaps vote it out of existence. It just seems to me that we read an article and get the "something must be done"'feeling, and are happy when the something does not involve us, hard work, care or a long time. Yet those something's rarely work out.
in short, the current problem with patents is not the fault of various jurors and voters in a small part of Texas. it's our fault.
[^1]: I posted a question at the SX for politics but I have never had much luck there. http://politics.stackexchange.com/q/3218/1926
There's nothing magical about the medical field, that makes approaches developed elsewhere somewhat irrelevant there. It's just another fee for service arrangement. Although many Doctors do like to fancy themselves as special snowflakes.
There absolutely is something different about medicine: consumers' participation in the medical market is involuntary. We don't see doctors because we want to see doctors, we see doctors because if we don't, we will be maimed or killed by disease or dysfunction.
By the time people are seeking a doctor, they're often not in any position to evaluate the market--if a real market for medicine even exists where they live--and weigh the reputations or contractual demands of several doctors before choosing one. They're in pain, they're suffering, and they need a doctor now. That's very different than buying a watch on Amazon.
Heck, even someone rendering services as conceptually involuntary as a will executor, can have a reputation fr being good or bad. Despite you not necessarily having much choice on the matter when the headline service is being rendered.
This is mostly about exceptional cases.
The evidence that I see says that this has been a practice for at least five years, and according to the Boston Globe[2] one reason for this is that doctors feel like the conversation is one-sided, as they are legally forbidden from saying much about their patients.
1] http://boingboing.net/2009/03/05/doctors-force-patien.html 2] http://www.bostonglobe.com/lifestyle/health-wellness/2013/03...
Your argument is that everyone knows hot coffee can scald you and it's their own fault if they don't take precautions. If I sell you shampoo with unlisted hydrochloric acid in it, and some gets in your eyes and you're permanently blinded, should I be held blameless because "everyone knows that getting soap in your eyes hurts?"
Selling a product that is known to be mildly dangerous, in a state that is cripplingly dangerous and lacking appropriate warnings, is a clear public health issue and needs to be punished.
What about the alcohol manufacturers, who knowingly sell you an addictive substance that impairs your driving, damages your brain, causes some people to use extreme violence, and causes fetal alcohol syndrome in babies. My gosh, what could be worse.
The shampoo example is ridiculous. Why would someone put HCL in a shampoo? Shampoos are basic, and acid would neutralize the base and result in something like colored water.
Anyway, my argument is not exactly what you stated. Rather, I was pointing out that there is a difference between direct responsibility and responsibility once removed. When you start blaming those who are indirectly responsible for an accident of whatever sort, you are opening up the field to a much vaster field of targets for rapacious lawyers. There has to be a limit, realistically speaking, or society would grind to a halt.
Now as for coffee: cripplingly dangerous? A clear public health issue? Ridiculous, even if you're just being semi-humorous at this point.
If I'm not paying attention while driving and get wrapped around a telephone pole, that's my fault. If my car bursts into flames on a minor fender-bender because the gas tank wasn't placed properly, that's the manufacturer's fault--and I believe there's plenty of legal precedent to support that.
Again, it's about expected/accepted danger vs. unreasonable danger. Not everything can be made marshmallow-safe, but we do expect a reasonable effort to keep hazards within expected bounds.
> The shampoo example is ridiculous. Why would someone put HCL in a shampoo?
I dunno! Why would someone serve a beverage meant for human consumption at flesh-melting temperatures? That's pretty ridiculous!
> Now as for coffee: cripplingly dangerous?
Stella Liebeck was literally crippled by it. I'm not sure what else you want.
Anyways, I don't think the 'greedy' angle has any merit to it. One pack (mcdonalds coffee comes in these premeasured packets) is good for exactly one urn of coffee, and you (and the customer..) will instantly know if you reused it because the result is terrifically light and unpleasant to drink (but this implies McDonalds coffee is pleasant to drink in the first place...)
As far as customer complaints go, McDonalds themselves had hundreds of complaints about hot coffee and burns for many years before this case ever saw the light of day. Those hundreds are a statistical rounding error when you consider how many cups of coffee the restaurant does in a single day that don't result in any problems, let alone years.
I still disagree with the ruling in that case. They still brew the coffee at the same temperature but now with lawyer safe "Caution: Hot stuff is hot!" markings on the cups. As if anyone with functioning brain cells wasn't aware of this.
Yes, 700 people manage to burn themselves in a few years and meanwhile 3.5 billion in a single year don't have any problem and the problem is obviously with the company selling the coffee instead of the 700 people who mis-handled a cup of scalding hot liquid. Give me a damn break.
So what warning difference resulted from this case? And would Liebeck really have acted any differently had that been the warning all along?
Would Liebeck have acted differently? That's not the objective of the jury in this case, especially considering that McDonald's conceded that their warnings were likely inadequate. To the extent that it is relevant, the jury did find Stella Liebeck 20% at fault for the accident and so the damage award was adjusted accordingly.
If you believe that Liebeck would have done the same thing with or without the improvement to the warning, you can't really blame the substandard warning.
It may be your right to buy hydrochloric acid and to pour it over your head, but actually, that's wildly different to what you said.
On the off chance that you're not, though: you can buy hydrochloric acid and pour it in your eyes if you really want to, but you should also have an expectation that ordinary hair care products won't have surprise deadly acid in them. Similarly, you can pour boiling water in your lap on purpose if that turns you on, but no one should be handing you a cup of flesh-melting liquid and telling you that it's fit for immediate consumption.
As a society, do we expect McDonalds to make that decision for us and just not sell coffee in the drive-thru?
Much of these cases is based on reasonable expectation. Would you ever expect your coffee to be so hot that it could melt your skin? No.
It think it is illuminating that so many people believe that Mcdonalds no longer serves their coffee that hot, but in reality, the only changes they have made in response to that lawsuit are changing their packaging, including adding warning labels. If you go to Mcdonalds and buy some coffee today, it could be just as hot as the coffee that that woman bought.
So to address this question:
> "Would you ever expect your coffee to be so hot that it could melt your skin? No."
You really should, because it still is!
I'd love it if the serving temperature of the coffee became more of a prominent option - I personally have to let freshly brewed coffee sit for ~20 minutes to be drinkable, and I even go so far as to delay adding cream (if I am going to) so that it loses heat quicker. But I still respect that my preference isn't universal.
[1] http://mentalfloss.com/article/26862/real-details-hot-coffee...
The reasoning for this was because people would buy their coffee in the drive-thru or lobby and take it home to drink. The whole concept of actually drinking it in the car was not considered when the holding temps were specified by corporate, not to mention spill-type accidents.
The injury actually was relevant and not an emotive distraction. McDonalds was selling coffee, not knives. Most would have the expectation that spilling a cup of coffee on yourself wouldn't leave you with 3rd degree burns on 6% of your body with 1st and 2nd degree burns on another 16%. She not only needed eight days of hospitalization for skin grafts, but also years of medical treatment.
McDonalds acknowledged that customers had gotten 3rd degree burns from using their product in the executed manner (multiple customers with 3rd degree burns), but that they were unwilling to make a minor change to the product that would prevent this.
It was the fact that they knew they had already injured people to the point of needing hospitalization that could have been avoided by making a minor change to keep people from getting injured that was at the root of why they were at fault. It was the fact that in court they stated that they were unwilling to make that change even after knowing about this injury that caused punitive damages, which the judge reduced.
I'm in the UK and I can buy tea all over the country. It is always sold at near boiling temperature - because that's how you make most tea, with boiling water. If you buy a beverage you can't just "expect" that it can't hurt you.
I expect this is why the outcome of the case is McDonalds adding a warning to their product that should be obvious to anybody - they didn't change the product because there isn't actually anyhing wrong with supplying a boiling beverage.
I don't buy tea in the US since the water's never hot enough to brew a good cup. The nature of the preparation is such that there's often little difference between serving and brewing temps.
When I buy coffee I have no expectation that it's as hot as tea because not only is it prepared differently, but there is always a difference between brewing and serving temperature. The serving temp is only peripherally related to the brewing temp. Most chains tend to serve coffee around 160-170 F / 71-77 C.
If coffee's served at 180 F/82 C, something is seriously wrong with the place's setup. McDonalds was serving at 190 F/87 C. They cranked their Bunn equipment to the absolute top end of the serving temp. the hardware would allow. At the higher end every degree has a huge impact on the seriousness of burns.
Reducing the temperature reduces the severity of the injuries.
Using your marshmallow analogy: if you sold the marshmallows in individual plastic shells and children started eating the marshmallows by sucking them out of the shells, and children were sometimes choking because they were inhalling the confection, and you were told about this but ignored it, then yes you probably should bear some responsibility.
I case you think this is unlikely: http://www.food.gov.uk/news-updates/news/2011/mar/jellycupba...
That and also it was a very important element in the PR campaign that was waged. Hiding and obscuring the extend of damages was crucial to its success. It would be hard to paint it as "oops someone burned themselves with some coffee, how silly" it they had to mentioned those were life threatening burns.
Coffee at 160F can quite easily cause third degree burns. It can cause third degree burns in less than one second.
Why did the judge reduce the penalty and what is the point of the jury giving a penalty fee which the judge can reduce later?
What coffee is not a burn hazard?
"What coffee is not a burn hazard?"
All coffee is a burn hazard, though the higher the temp. the greater the hazard.
Please, if you'd like to reply, and want to refer to burns, do me the huge favor of referring to "third degree burns." It's one of those things that indicates the difference between discomfort and hospitalization, very germane here, especially in the distinction between specific facts and vague generalizations.
But none of that changes the fact that coffee is a hot drink. When you go into some store, and order some potentially harmful item, you should expect to get a potentially harmful item, and handle it accordingly. It's not the store's fault if you fail at doing so.
(As an unrelated note, insulating cups are dangerous in that they enable careless handling. It's again not the store's fault, consumers demand those cups, but it's something worth warning people about.)
I'm not going to link to them directly because they're very gruesome (as well as slightly NSFW[0]), but if you Google "mcdonalds coffee burn", they're the first things that pop up. We're talking burns far beyond anything I assume (hope) you've ever experienced.
This case in particular is one that irks me, because it's very easy to distort the facts (and ignore McDonald's wilful negligence, which was mentioned above[1]).
[0] You can see her vagina, because the burns were between her legs - though trust me, that's not the part of the picture that will grab your attention.
[1] Note that the jury awarded punitive damages - this means that above and beyond the damages owed to Liebeck, they determined that McDonalds needed to be punished financially for their actions; this is a much higher bar than the "typical" civil suit.
At least two people in this thread want me to stare at grisly pictures. Yes, they're awful. I sympathize with the lady for having to go through that pain.
That said, I can point you to grisly pictures of car accidents, gun accidents, and animal attacks all day. What does that have to do with understanding the nature of responsibility in our society and the impact of transferring responsibility for all accidents to the providers of products and services that are giving consumers exactly what they're asking for.
Good to-go coffee is served hot. That's what consumers want. That's what I want. What do you think that lady would have done all those years ago if McDonalds had served her some 115F coffee? My guess is that most people would take it back and ask for hot coffee.
As a matter of ethics, I espouse maximizing individual liberty and consumer choice. It's a bad thing to saddle everyone with lowest-common-denominator products and services because an extraordinarily small minority of people are unable to make decent decisions.
Is the severity of the self-inflicted injury the rubric by which we judge frivolous lawsuits now?
What cements the case as being meaningless in my mind is the fact that they were not ordered to strengthen their cups or to brew at a lower temperature. That alone tells me that the "danger" here is only encountered by people doing otherwise stupid things. Such as sticking crushable cups of scalding hot liquid between your legs in a situation where your legs will not remain static.
The fact that 12 people could be convinced that a faceless corporation was doing something negligent (which isn't exactly hard on a good day) due to a horrific, but ultimately self-inflicted injury that 99.99999% of people manage to avoid holds precisely nil value in my mind because of the sheer statistics in play.
You know the car was not moving at the time, right? And that McDonalds changed the warning on the cups and changed the style of cups?
And if such sanctions had been within the ambit of the jury empaneled, in a civil case, to consider the damages specifically due Stella Liebeck as remedy for her injuries, this statement might actually mean something.
You know, you've got this hilarious sort of completely unintentional doublethink going on that I just can't get enough of. I mean, on the one hand, you're tossing off all the slippery-slope-to-the-nanny-state clichés which are so depressingly common in arguments over this very case -- and on the other hand, you're blithely implying that the very same jury, which you hold in such thinly veiled contempt for having found differently from how you believe you would have in their position, should have had the power not merely to award monetary damages to Ms. Liebeck as they did, but should also have had nigh-untrammeled power to regulate the operations of a world-spanning corporation in whatever fashion they saw fit.
There's a certain essential irreconcilability in these opinions which I think you haven't yet noticed. Did the jury have too much power, or too little? Is the state too nanny, or not nanny enough? It can't be both. Make up your mind!
According to the Wikipedia article[1] the lid didn't pop off accidentally: she tried to remove it.
[1] https://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaura...
If necessary, they can do the same thing as SF does with the bag fee:
-- coffee in your own mug costs like 69 to 99 cents. -- coffee in a disposable mug that is adequately safe costs 99 cents plus the cost of the safe mug.
TBH, even for situations where safety isn't a concern, I'd love to see the bag fee concept extended to pretty much everywhere where disposable containers are used.
Had McDonalds served their coffee at a temperature that a reasonable person would expect it to be served at, they would not have been liable for any burns caused by the coffee. This is why you don't see Starbucks getting sued for coffee burns.
McDonalds wasn't sued for serving coffee that is hot enough to cause burns. They were sued for knowingly serving coffee hot enough to cause burns far more severe than a reasonable person would expect and far more severe than the burns caused the coffee served by the rest of the industry.
Instead, we get an obvious warning on cups to join the other few hundred obvious warnings.
Obviously the CPSC/FDA or their local/state counterparts (I'm not sure who would exactly be responsible for such regulation in this case) didn't see the need to get involved.
I don't know where you're coming up with "nanny statism".
I generally do not hold juries in great respect; they often rule on emotion rather than hard fact. But that is a rant for another time.
Have you any other thinly veiled insults you'd like to throw my way as a result of my communicating unclearly? If not, I think we're done here.
She was served coffee hotter than other places served coffee. Other places had listened to and responded to the CDC's warning about beverage serving temperatures and had reduced the temperature of the drinks that they served while still allowing people to order extra hot drinks.
Yes, when a kettle boils the water is at 100 Celsius. But you pour that into a cup and add milk. Try it at home if you have a thermometer. Try taking the temperature of coffee that you find acceptable to drink with the temperature that McDonalds was serving their coffee at.
Do you realise that the McDonalds coffee case was used as propaganda by insurance companies? They misreported the case (they said she was driving; that the vehicle was moving; that she sued for and got millions;) they also said "of course coffee is hot"'and did not mention that McD's was serving coffee hotter than other places and had ignored many previous injuries and the CDC warning on temperature.
What McDonald's did have, however, was a way to estimate what temperature it's customers in general prefer their coffee served at. Roadside Coffee is, after all, a pretty competitive market. If you're too far off temperature wise, people go elsewhere.
Hence, by the standards of "the community", or whatever you wish to call them, McDonald's served coffee at the right temperature. Or at least close enough not to offend enough of them to lose measurable business.
Out of curiosity, did McDonald's manage to poor milk into the cup, and still have it end up that hot? Maybe I have weird ideas about coffee, but for someone all too used to lukewarm coffee once milk is added, that actually sounds quite impressive for such a decidedly low rent establishment.
Yes. They had 700 previous burns cases that they settled out of court (including some very serious full thickness burns). They were serving coffee that they admitted was not fit for consumption (because they knew it would burn the mouth at the temperature it was served at). They knew they were serving coffee at higher temperatures than other places selling coffee. They knew they were serving coffee at a higher temperature than people have it at home.
McDonalds was egregiously horrible throughout the trial which is why they were hit with punitive damages. "Granny" wanted $20k for the medical expenses of an eight day hospital stay and lost wages. The jury watched McDonalds consciously weighing more than seven hundred reports of customers with medical injuries against others customers having a hot cup of coffee at the end of a long commute and saying they would live with people getting 3rd degree burns.
Also, even if your coffee is merely warm, rather than hot it's still "drinkable." If you are some coffee snob who wants a really perfect hot cup of coffee, you aren't drinking the swill McDonalds serves.
The right to defend yourself in a criminal trial does not imply the right to bring in all kinds of inflammatory, irrelevant evidence.
Likewise, the right to a civil trial does not imply total jury autonomy in dictating the punishment. If that were so, there would be no point to eg rules of evidence, judges reducing damages, etc.
FTFY
Did we really have cases like this, back when the Bills' authors were still alive? Otherwise, doesn't all this brouhaha look like it boils down to little more than someone getting paid very well to conveniently misunderstand what the Bills were intended to mean? Paid better, in fact, than if instead of harassing others, they simply went out and solved the problem they perceive exist, by selling perfect temperature coffee themselves.
In other words, the corporate culture of their coffee operation is not greedy, as often assumed, but specifically sadistic. Happy to suffer lost sales and revenue, higher legal fees, and a shattered reputation, just for the pleasure of burning people?
It would be interesting to see the kind of interview processes that managed to maintain that kind of a corporate culture despite all the churn inherent in minimum wage job environments.
True, it's usually not, although it's considered a "hack" to get better coffee to ask for hotter coffee from Starbucks (so that your drink stays warm in the cold and when you are taking your coffee with you): http://www.businessinsider.com/starbucks-drink-extra-hot-201...
The National Coffee Association recommends brewing between 195 and 205 and holding around 180 to 185 if not serving immediately (which it recommends). Source: http://www.ncausa.org/i4a/pages/index.cfm?pageid=71
Many people who brew coffee at home have coffee that can be as hot as 205F. Fancy fresh pour over coffee from a nice coffeehouse will have just been brewed with water around that temperature.
And it also raises the interesting question of what these places are supposed to do about tea: if they serve you hot water and a tea bag, the water served should be close to boiling if it's herbal or black tea to get a proper extraction.
Either way, it's not quite so simple as "McDonalds was careless".
No, it's far worse than McDonalds being careless: They knew that their practice was dangerous, and regularly resulted in medical treatments, yet did not change their procedures.
The fact that someone gets hurt does not prove that there was negligence. Compare how many people get into car accidents on the way to McDonalds.
McDonalds coffee, conversely, is just plain old shit. It's the worst coffee I've ever had, and that is saying quite a lot. If you've ever tasted it, you know that they could brew it at 200, 180, or 140, and it's still going to taste just as godawful. There is absolutely no reason they need to be passing it out the drive-through window at temperatures high enough to peel skin and poach flesh if the half-awake minimum-wage worker who poured it didn't pop the lid on quite right -- or if, while taking the cup and getting it settled into the console, you fail to pay the sort of attention commensurate to a potentially life-threatening process which you probably didn't realize was potentially life-threatening.
Whose fault is it?
Does Starbucks have to lower the temperature of the coffee they're serving to maybe 115F in order to avoid responsibility? If I spill it in someone's eye, that may still cause an injury. Does Starbucks need to serve their hot coffee at 98.6F?
I don't know. It just starts to sound ridiculous on how sellers are supposed to completely protect us from ourselves when we misuse the products we buy.
WalMart sells guns, and those can be horribly misused quite easily.
Can anyone provide a reliable source for whether or not there is a standard temperature for coffee (and what that temperature is, if it exists)? Obviously, a certain degree of variance is expected based on the time between brewing and serving - if the variance really is ~50 degrees F, I don't see anything wrong with that answer if it's sourced.
To do so is a disservice to the customer. (I also own two restaurants.)
[1] http://aerobie.com/images/AeroPress%20Instructions%20for%20W...
The details of the case are there for all to see and in no way do they paint a picture of common coffee incidents, despite the gratuitously oversimplified and cliched versions pandered to us by a generation of comics.
To continue your Walmart analogy, the expectation would be that the guns are sold empty. But if instead Walmart were selling guns preloaded without warning the customers that there were bullets already in the guns, I would argue that Walmart would be at least some percentage at fault when some percentage of their customers inevitably shot themselves or others, just as it was some percentage McDonald's fault when their customers spilled the dangerously hot coffee on themselves.
I see your point, but I think it might be worth clarifying that despite Walmart's probable liability, this would in no way indemnify their customers; the first rule of gun safety is RESPECT EVERY GUN AS LOADED until disassembled into its component parts, no exceptions.
That expectation is unreasonable. If you go to Starbucks today and get a black coffee, that coffee will be hot enough to give you third degree burns. If you buy black coffee from Mcdonalds today, it will likely be just as hot as the coffee was that burned that woman two decades ago.
The industry standard was and continues to be serving coffee that can cause 3rd degree burns. You would do well to expect that.
Other places were sucessfully selling coffee at a lower temperature than McDonalds. While burns are still possible at those lower temperature a few extra seconds would have given her time to remove her clothing which would have eeduced the severity of the burns.
People are not pushing personal responsibility onto McDonalds - McDonalds took responsibility when they admitted that they preferred to settle 700 cases (some including full thickness burns) out of court than adjust their procedures.
Your personal preference is for undrinkably hot coffee. McDonalds could have offered two temperatures - regular and extra hot. Someone asking for extra hot is taking personal responsibilty for that choice, and is declaring that they know the liquid is very hot.
(About those 700 burns, including full thickness burns: full thickness burns are a medical emergency. They can be fatal. They require specialist medical attention involving painful procedures that leave scarring and possibly loss of function. McDonalds made a careful conscious choice that allowing these burns to continue and then settling costs out of court was preferable to complying with national advice about beveridge temperature. You are asking people to take responsibility for their actions: the jury decided to make McDonalds responsible for that choice.
Well, okay, we can agree on that; but "safe temperature" McDonalds coffee is even worse than hot McDonalds coffee.
when they admitted that they preferred to settle 700 cases
There's no business on earth that does McDonald's level of product distribution that doesn't have hundreds or thousands of attempted baseless suits. It still says nothing about whether or not McDonalds was distributing a product that its customers wanted in the way they thought their customers wanted it - and whether or not they're responsible for resulting mishaps.
McDonalds could have offered two temperatures
As though the woman didn't have the choice to not order coffee at all? The woman could have made the decision to go into McDonalds and cool it herself by putting cream in the coffee or even a piece of ice. McDonalds did not force her to buy coffee on that day.
full thickness burns are a medical emergency. They can be fatal
A car accident over the speed of 50mph (for argument's sake) can be fatal too. Would you suggest that any auto manufacturer that offers an automobile that goes over 50mph is responsible for any accidents that occur at that speed?
When I was a kid, I got a pretty decent electric shock from a neighbor's improperly mounted doorbell. The doorbell did not work, so I flipped it over (it was dangling on some wires) and tried to fix it on the spot (as if I knew what I was doing...) and got shocked.
From that moment on, I knew not to touch exposed wires. I knew that it was my own damn fault for touching the wires and getting shocked. My parents got really angry at my neighbors for having exposed wires like that, but I was scolded too for doing something I had no business doing.
The point is if the coffee lady had any common sense she would not have put coffee between her legs (I feel bad for her injuries as any person would, but I still fail to see McDonalds' responsibility here). The worst thing to happen to our judicial system isn't the hot coffee case - it's shifting the onus of personal responsibility to the service or product providers.
edit: I'm speaking strictly about the hot coffee case and ones similar to it. The article goes on about medical cases which are obviously much more complex
If this coffee is < 200F, then I can safely put in lap. Else, I will ask nephew to hold.
Nope. People don't do that. They just do the right thing most of the time, dumb things a small fraction of the time. Some people do more dumb things than they should.
The Liebeck situation is an edge case. McDonald's sells tens of millions of cups of coffee a day (depending on the source, 10 million/day or 300 million/month or 500 million a month). If there are several burn cases a year, or even several hundred, that probably does not constitute a significant trend.
There are thousands of people who burn themselves, electrocute themselves, crash their cars, choke on a bone, and do other things that are unfortunate but avoidable with a little common sense.
You can't protect everybody from every contingency, nor would you want to; we would become a nation of prisoners in soft rubber cells, protected from every possible danger. I read a sci-fi story about that once and it was rather unpleasant!
Fresh black coffee from just about any shop will cause 3rd-degree burns if you spill it in your lap. Mcdonalds coffee was not somehow unique in that respect, despite opinion to the contrary.
In this thread, meaning to condemn Mcdonalds by holding the "reasonable Starbucks" up as an example, Starbucks coffee has been pegged at "145-165F".
145F coffee can cause 3rd degree burns in less than five seconds. 165F coffee can cause 3rd degree burns in less than one second.
Industry standard coffee causes third degree burns.
The fact that you say that this is a matter of "an extraordinarily small minority of people [who] are unable to make decent decisions"[0] leads me to believe that you still don't understand the details of this specific case - including details pointed out elsewhere in this thread (let alone available elsewhere online).
We're not talking about some hypothetical woman with hypothetically hot coffee from a hypothetical company - we're talking about a specific incident in which the facts are actually very readily available.
[0] You also draw a completely false dichotomy when it comes to "individual liberty and customer choice", since that's actually not the issue that was litigated here. If you want to find out the issue that was actually litigated, I'd invite you to read up on the case to the point where you understand that the temperature of the coffee itself wasn't actually the reason that the jury awarded the punitive damages (the civil damages, yes, but not the punitive damages).
She did not get a McDonalds kettle and pour just boiled water onto herself. She asked for a cup of coffee, paid, took the coffee out to the car and got in the passenger seat. They drove for a short while. They stopped the car. She removed the lid and spilled the coffee.
A more fair comparison would be if she had poured her boiled kettle into a mug, carried that through to another room, and spilled it on herself as she sat down.
It's likely that in the latter case the water which would have been cooled by the mug and a metal spoon would have been less hot. That would have given her a few more seconds to remove the scalding clothing, which would have helped to reduce the severity of her injuries.
Part of the problem is that McDonalds was serving coffee hotter than people would have it at home because McDonalds wanted it to stay hot for the duration of the journey.
Because McDonalds customers want the coffee to stay hot for the duration of the journey and all customers know that coffee is very hot and they need to be careful with it.