Wednesday, April 19, 2017

Analysis of an Outrage Story: The McDonald's Cup Of Coffee Lady

Is hot coffee a dangerous instrumentality?  Is it worth getting outraged over?


Sometimes stories can be used to sell outrage in more than one way.   You either think that the McDonald's cup-of-coffee lawsuit was totally frivolous, or you think McDonald's is an "evil corporation" who set out to burn people because somehow that made them money.  Neither is really true.

The question you have to ask yourself, though is why are you outraged at all?   It is merely a squandering of your own emotional energy.  And as it turns out, there isn't much to be outraged about, as it really boils down to (pardon the pun) a war between two competing economic factions, neither of which has your best interests at heart.   But both want to use you, and your outrage.

When it comes to poverty stories, none tops the list like the McDonald's cup-of-coffee lady.   It was a long time ago, but people still cite it as an "outrage" - but the outrage is often directed at different players.  Folks like to sit around and tell this story - or the outsized urban legend version of it, and either use it to bootstrap their dreams of winning "litigation lottery" or to be outraged at a legal system that allows such suits (while still secretly wishing they would win a million bucks themselves!).

In case you missed the real story, the lady put a cup of coffee between her knees in the passenger seat of her son's car, tried to remove the lid, and when she did, it shot hot coffee all over her crotch, which caused third degree burns.  This was not a pleasant experience, to say the least.

There are two points of view on this story, both valid, both irrelevant.  The first is "this is another example of frivolous litigation!  This lady won five million dollars from McDonald's!  Everyone knows that coffee is hot!  What was she thinking putting the cup in her crotch?" 

Of course, this argument exaggerates the facts.  She "won" about $600,000 after it was reduced on appeal, and then both parties settled for an undisclosed amount (hint:  probably less than the $600,000).  The lawyers claimed they waived their fees in the matter.  I don't know about you, but even a few hundred grand doesn't make up for having hot water sprayed all over your vagina.  This lady didn't "come out ahead" in the deal at all.

The other side is equally adamant.  "McDonald's had coffee hotter than other coffee shops and they knew of other injuries from hot coffee and did nothing to lower the temperature!  Another example of evil corporations putting profits over people!"

But this argument is also flawed.   Yes, paid expert witnesses testified that the coffee was hotter than what you serve at home and that it could burn you more as a result.   But McDonald's also argued that the reason for the hotter coffee was that it tasted better (near-boiling water is needed to bring out the aromatics in coffee beans) and that it would stay warmer while people drove to the office or jobsite where they could consume the coffee.   There was really no profit motive in making the coffee hotter, they were just trying to make a better product.  And as it turns out, today, coffee is pretty much still served at the same temperature as before - by a number of outlets, not just McDonald's.

The question gets down to whether people are aware or should be aware that in order to make coffee or tea you have to boil water and thus the beverage is served piping hot - hot enough in fact to burn you.   We make tea every morning and we have to wait several minutes, not only for the tea to "steep" but for the temperature to drop to drinkable levels.   You would injure yourself severely drinking the hot water directly out of the tea kettle.   Funny thing, though, the kettle has no warning label on it to this effect.

Maybe I should sue.

I had to take Mark to the fire house the other day when he spilled a pan of bacon grease on his hand.  (By the way, the best way to make bacon is in the oven.  Put the strips on parchment paper on a baking sheet (the kind with a 1" edge around it) and bake it.  No mess, no splatter, and perfect bacon every time, thank you Cook's Country.  Now, if you'll just stop using negative option subscriptions and drop the frivolous suit against your founder, I might actually re-subscribe to your magazine!)

Funny thing, the bacon package came with no warning about this.  Maybe we should sue them, too?

It is a relevant question as to where personal responsibility begins and ends, with regard to everyday hazardous items that we handle on a regular basis.   Running with scissors is dangerous.  Should they all be blunted for safety?   On the other hand, dishwasher makers have changed their designs after many children were impaled by knives sticking up out of the cutlery tray.  It is never a cut-and-dried issue (sorry, pun again).

The "We hate McDonald's" side (and personal injury attorneys I've talked to) believe that the fact that McDonald's coffee is hotter than other sampled coffees (according to paid expert witnesses) is proof enough that they are at fault.  But that is not entirely clear to the rest of us.  I mean, after all, shouldn't we know that fast cars can kill you, hot beverages can burn, and that putting your fingers in the lawnmower means no more fingers?

The other side of the debate (if you can call it that) will point to urban legends where usually some jughead (conveniently a foreigner, if they are xenophobic) buys a lawnmower and decides to trim his hedges with it.   He and his brother-in-law lift the running mower to run it across the top of the hedges and lose all their fingers.  They sue the lawnmower company and win fifty gazillion-billion-trillion dollars.  "Another example of our legal system run amok!" they cry.

(Funny thing, the same people telling this story around the cracker barrel are waiting for the settlement in their slip-and-fall suit and their corresponding disability claim to be processed).

Of course, the problem is, the lawnmower story isn't true.  It is just an urban legend.   And the McDonald's Coffee Lady story has assumed similar proportions of legend, based on who is telling the tale and what they are trying to sell you (tort reform or big-corporations-are-evil).

So what is the real deal?  Should we be outraged at heartless McDonalds for flinging scalding hot coffee in the faces of toddlers?  Or should we be outraged at those heartless personal injury attorneys (throw in the antisemitic content here, if desired) who are sucking the life blood out of the Nations' economy?

How about this?  How about not being outraged at all?

Yes, I know this is hard for most people to do.   Not be outraged.  It is an interesting concept.   You could consider all the facts and then figure out, well, it isn't much of an outrage at all.

What we have here is a fight between two opposing political and legal views.   When I went to George Washington University, it was a "Liberal" law school, as opposed to nearby George Mason, which subscribed to the Chicago School of Law and Economics theories.  At GW, they taught us "deep pocket theory" - that any wrong in society should be righted by whoever has the most money in the transaction.   It doesn't matter about causation or who was at fault, just sue the guy who has the most bucks, and everyone is made whole.  They can afford it, right?

Like I said, it is a theory - one that has been losing ground as of late.

And part and parcel of this theory is that the court system should be used as a means of social change when the legislative branch refuses to act.   State or Federal legislators or regulators won't enact safety standards for coffee temperature, so the personal injury suit, coupled with punitive damages will force companies and individuals to change their behavior, not because of any law, but because of fear of future lawsuits.

And actually, Congress has gone along with this theory.   If someone robo-calls you, you can sue them under the law, and you can make money at this. It is spelled out in the law, even how much you can sue for.  Someone "junk faxed" me and I sued them, and got $1000 for my troubles.  They were pissed at me to be sure, but I came into my office one Monday morning and found my fax machine run out of paper because he sent me several 13-page faxes advertising his - get this - prices on fax paper.   Meanwhile, my client can't fax me because the machine buffer is full.

We've actually enacted laws - some decades or over a century old - that allow people to sue to correct wrongs in society.  The False Claims Act allows people to sue Qui Tam on behalf of the government to collect damages on behalf of the government, taking a percentage as a bounty.  So this idea of using courts to rectify wrongs is, well, pretty old.

The other side of the argument is that the litigation profession has gone too far.   We have specious lawsuits being brought every day, and the cost of litigating these is driving up the cost of doing business, which leads to higher prices for consumers.   It is akin to the abuses in the Patent system ("patent trolls"), or these "drive-by" ADA lawsuits where people harass the 7-11 owner about the angle of his handicap ramps.

To hear them tell it, the entire U.S. economy is being dragged down by such lawsuits, including, of course, the class-action lawsuit.   And the only real winners in these suits are, of course, the litigation attorneys.

In the famous "side saddle" gas-tank lawsuit against GM, the class members in the suit received a coupon good for $500 off on a new GM car.   If your kid just died in a fiery crash of a GM pickup of that era, odds are, you are not keen to go buy a new one.  That suit, like the Pinto suit, was typical of the time, because of how cars were built back then.  Back then, manufacturers put gas tanks on cars where they were convenient.   Cars didn't have seatbelts or even padded dashboards.  They were in fact, deathtraps.

Back then, the gas tank was often put behind the rear axle.  The filler tube was behind the license plate, in the center, so you could fill from both sides.  They did this because people liked it and it was cheap to do.   Putting the gas tank under the rear seat (as in modern cars) would have been safer, but with rear-wheel-drive, it is very hard to do.  BMW did this with my E36's, using a "dog-bone" shaped tank that straddled the drive-shaft.  It required two fuel pumps and two level sending units (for the fuel gauge) and a mess of wiring.  It wasn't cheap or easy to do.  In fact, the technology to do this simply didn't exist back then, unless you wanted to install two 10-gallon tanks and have separate fuel gauges.

When cars got smaller, the problem got worse.  The Pinto suffered from this problem because, in addition, they started using 5 mph bumpers, which required huge bolts to attach, and Detroit was fond, at the time, of pointed bolts, as they were easy to install with an airgun on the assembly line.   Sadly, no on figured out these bolts would act as detonator pins and puncture and ignite the fuel tank in a rear-end collision.

And in any car design, there is a cost-analysis factor involving the cost of design changes versus the cost in human lives or injuries.  People today (particularly the social media types) like to say, "If it saves even one life, it's worth it!" not realizing that such an argument could be used to outlaw cars or even airplanes, or indeed, any human activity which involves any level of danger.  If you think this cost-benefit analysis was unique to the Pinto design or doesn't go on today, you're living in a dream world.   Engineering is all about balancing costs and risks.

Funny thing, though, a lot of people shaking their head over the Pinto debacle drove Volkswagen Beetles, which were even worse, as the gas tank was in front, with the jack positioned as a detonator pin.  The dasboard was open to the front trunk, and the only thing keeping flaming gasoline from rushing into the passenger compartment was a thin layer of cardboard.   Don't take my word for it, ask Ralph Nader.  Or ask my friend who was burned from the waist down with 3rd degree burns, in a Volkswagen accident.  Funny thing, he never got a check from VW over that, and it was a lot worse than being burned by coffee.

Did these lawsuits make cars safer?  Or was it government regulations?  Or a combination of the two?  It is hard to say, but no one has gas tanks outside the frame rails (such as they are) of cars today.   But let's face it, if you plow into something fast enough, no matter where the gas tank is located, 20 gallons of gas will blow up, if the impact forces are high enough.   True, today, cars are a lot safer.  Today, even the smallest of cars weighs in at 3,000 lbs.   No one makes sub-2000-lb cars anymore.  Due to regulations - and yes, litigation - cars are safer than in the past. Today, we have better technology than back then.  Judging yesterday's cars by today's standards is hardly fair.

But the ultimate thing is, truth is rarely black and white, it is kind of messy and grey.  Getting "outraged" by one story or another is hardly a useful use of your spare time.   It does, however, make you a useful pawn in these legal and political games being played out.

And that is all the McDonald's cup-o-coffee-lady story was - just another point in the graph of litigation attorneys versus companies.  Of two opposing viewpoints of how the law should be applied, as a set of rules or a means of righting wrongs.   Bear in mind that the jury in the cup-o-coffee case found the lady partly to blame for her own predicament and thus reduced actual damaged to $170,000.  The real issue was the tacking-on of $2.7 Million as "punitive damages" which, as the name implies, are designed to "punish" the defendant and get them to change their behavior.

The question arises, should a jury of twelve pretty clueless people be deciding public policy, vis-a-vis design of gas tanks on cars or what temperature coffee should be served at?  I know this is a boring question, but that is the real issue at stake here.   Of course, since that case, punitive damages have been curtailed severely by the Supreme Court and likely will be curtailed further as time goes on, at least with the new Justice on the court.  If this case was tried today, it is likely that the punitives would not be awarded at all, or reduced to nothing on appeal.

"But," some folks argue, "she offered to settle for $20,000 early on and McDonald's refused!  Isn't it their own fault for litigating the case?"   Maybe, maybe not.  From their perspective, if you pay out $20,000 each time someone burns themselves with hot coffee, you'd better get your checkbook ready.  Because once word gets out, well, a lot of people will be claiming their $20,000.   Yes, people do stage "copycat" accidents, particularly with big companies.  The reason they have cameras in the aisles of the grocery story isn't just because of shoplifting, it is the fake slip-and-fall accidents that people routinely stage.

And you aren't defending the idea of people faking accidents, right?

The other problem is, if you change your policies or change your designs, a personal injury attorney will use this as an admission that you knew the design or policy was faulty and therefore were at fault.   Back in the 1970's, this was a real problem.  You change a car design to correct a defect, and you open yourself up to lawsuits.   You do the right thing, and you get sued as a result.

Similarly, companies - yes, including United Air Lines - don't want to admit fault when a passenger does something wrong and creates a fuss.   If they so, well, you've given carte blanche to other passengers to create a similar fuss.   And also you've add fuel to the fire of the personal injury lawsuit.

Why do you think that guy ran back on the plane?   Could it be to make sure he got his injuries on the YouTube video?   It does seem like an odd thing to do.

So, oddly enough, our litigation system can force companies to feel that they can't change course, or can't change designs as doing so only places them at a legal disadvantage.  No matter what you do, you can't "win" at litigation lottery if you are a defendant.  Your opponent will use the media to smear the name of your company, and all you can say is, through your corporate communications director, "We cannot comment on pending litigation matters on advice of our attorney."

The Plaintiff holds all the cards.  And today, these cards include an army of clueless idiots on social media who can be counted on to be "outraged" by whatever slanted story you want to put out there.  The opposing side is muzzled by pending litigation.   But people don't see that - they see only outrage and they see red. They post on their wall, they text, they tweet.


People gunned down in the street take a back seat to a guy who refuses to give up his seat.  Why is this?

Of course, it cuts both ways, doesn't it?  Most of the outrage in the cup-o-coffee case was directed not at McDonald's, but at the personal injury litigation system.  The corporate interests against personal injury attorneys - and in particular punitive damages - did a good job of stoking the fires of outrage against "sleazy opportunistic lawyers" which is an easy target (like an airline) to hit.

It was only with the Trial Lawyers Association got into the act that we heard another side (albeit one that was kind of lame - "the coffee was hot!") to the story.  But it was pretty much too late.   People made up their minds.  The lady "won" $5 million which is why a Big Mac costs so much and why jobs are moving to China.

The real truth?  Well, like auto gas tanks, cars are different today.  Most cars have at least two cupholders, if not six or eight.  Coffee cups are differently shaped, and we've become a coffee-drinking nation - Starbucks is what has happened in the 20 years since the cup-o-coffee lady.  According to some sources, McDonald's still serves its coffee hot (180 degrees or so) - as do most Coffee places, including Starbucks.   Not much has changed in that regard.  We have new coffee cup designs and new coffee lid designs, and "caution, hot coffee!" written in tiny letters on the side of the cup (like cigarettes, if you put a warning on, people can't sue).

So not much has changed with regard to coffee.  The jury didn't change social policy much in this case.  The anti-litigation contingent did make hay from the situation, and today, personal injury suits are reined in somewhat.

But the lawsuits are still being filed, even today, over hot coffee.  The only thing that has changed is, we aren't so outraged by it anymore.

And the poor lady who burned her cooch?   Sad story.  A series of skin grafts and a painful recovery.   She really didn't "win" anything out of the deal, regardless of who was at fault.

Am I outraged?  At who?  For what?   I've learned long ago that horribly bad things can happen to very nice people - like my friend burned in the VW collision.   We just have to thank God that horrible things haven't happened to us, just yet.   I've also learned that these things work their way through the courts with or without my sense of outrage.   Maybe the personal injury system needed reform, and maybe that reform has occurred or is occurring (not by the billboard count, though).  The legal system still seems to favor lawyers the most, as people are slowly realizing.  If you are outraged by that, you're not paying attention.

The point is, and I did have one, being "outraged" over these one-sided stories is often just a waste of your personal energy.  The McDonald's cup-o-coffee case turned out not to be such an outrage after all.  McDonald's spent more on legal fees than they did on the settlement.  And the personal-injury attorneys likely didn't make out very well, if in fact they lost money in the deal.  Coffee is still served hot, and whether McDonald's was "at fault" is really not very clear even today (unless you are a personal injury attorney, of course!).   What was the point of being outraged over it all?

A better approach is to wait-and-see where it goes.   Oftentimes, long after things have settled down, we find out the real facts, which often are far different than the "outrage" story posted by the media.  And of course, the media loves an outrage story and will post half the facts to get you upset so you keep watching and keep clicking and keep viewing.   You've sold yourself to corporate interests by being outraged.  They've got you so angry you are seeing red, which means you are seeing nothing at all.

It is akin to the BLM movement.   A guy with a sketchy background robs a cigar store.  Confronted by the Police, he dives into the police car to wrestle the gun away from the Policeman, in an attempt to murder him.   These are the facts as they came out in the end.   The "outrage" story of the "unarmed black teen" or whatever, turned out to be entirely false.   This is not to say that there are no cases of police abuse, only that this wasn't one of them.

But once you see a "pattern" or think you do, you start to see Jesus' face in a taco everywhere.  Suddenly it seems there are a "spate" of police officers shooting or killing "unarmed black teens" for no reason whatsoever.   Our brains, programmed in pattern-recognition, start looking for patterns where there are none.  Every police shooting is now deemed unjustified, just as every incident on a United airlines flight today is now reported breathlessly.   Nothing has really changed, other that we weren't looking for a pattern before, and the media wants to give us something we will click on.

In short, you are being used and you are letting yourself be used, by being "outraged" by the media.  I have received several e-mails (some pages long!) trying to explain to me why I am "wrong" on the issue of this United thing, when really I have no opinion at all, other than there is likely another side to the story we are not hearing, and when someone says get off their plane, you kind of have to.   Over time, we will hear more about this story, and a decade from now, when the dust settles, you will read about it on Wikipedia and wonder what all the fuss was about.

It is like the Columbine massacre.  Other than the actual killings themselves, nearly everything reported by the media at the time was completely wrong - 100% wrong.  And this is not an anomaly.  The media reports rumor and innuendo all the time - or just half the story to slant things one way or another - whichever way gets you to watch, click, read, or buy.   Boring stories don't sell newspapers.

So, stop being outraged.   This guy thrown off the plane is suing.  United will spend more on lawyers than he will get in the undisclosed settlement.   Not much will change in the world.  If a flight attendant taps you on the shoulder and says you have to get off the plane, you will still have to get off.  That rule isn't going to change and never will change - because if you think about it, it would be unworkable to allow passengers to decide how the plane is to be flown.

And no, a "bill" (which is not a law) introduced by an opportunistic State legislator (who wants to suck up to voters) is not likely to pass, or if passed, not likely to be enforceable, as Interstate Commerce is not the province of local legislators who cannot even come up with a budget for their bankrupt State.

Hmmm..... If I lived in Illinois or Chicago, maybe that would be something to be outraged about?

Update :  This is a picture of coffee I made this morning using a percolator, a few moments after pouring it. As you can see it is 180 degrees Fahrenheit the temperature of the so-called dangerous McDonald's coffee.

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