McDonald's coffee lawsuit revisited

Great Debates
141

Okay, let’s say that for every person that McDonald’s settled with, there were 10 more burns that we never heard of. That would be a total of 7,000 coffee burns, out of 10 billion sales.

Is this a big number? In safety engineering, there are certainly levels of acceptable defects. For defects that do not cause serious injury or death, the standard is often about 3 sigma. For more critical defects, the current standard is around 6 sigma. Six Sigma is the ‘gold standard’ for process control. That’s about the level of defects you’d find in things like GE’s Lightspeed MRI scanner.

Defects that can cause death are held to an even higher standard, but let’s be clear about something: It is perfectly acceptable and reasonable for an engineer to do a safety analysis on something and say, “x% of people may be killed due to defects.” This is not negligent. It is an acceptance of reality. Humans are not perfect, and neither are products or systems. Ford knows that x% of their cars will suffer mechanical failures, and some of those failures will result in death. It can not eliminate them - only reduce them. If Ford tried to build a car that was guaranteed to never kill anyone, no one could afford it and it would weigh 10,000 lbs. If it could be done at all.

So some amount of risk is acceptable. In the case of hot coffee, the worst-case scenario is what happened - 3rd degree burns over a limited part of the body. Not death. And Six Sigma is the ‘gold standard’ of process control and defect management.

7000 burns out of 10 billion servings works out to be 6.33 sigma. If it’s only 700, it’s 6.77 sigma. That’s way better than the industry standard.

So why is McDonalds at fault again?

And let me repeat: If the coffee were as dangerous as the plaintiff’s lawyers and some of you are suggesting, and it’s served to people in moving vehicles, then the number of injuries should be WAY, WAY higher. Lots of people spill beverages in their cars. I myself have spilled coffee and pop on myself.

Let’s assume that there is one coffee spill for every 5000 servings, which sounds low to me. If that were the case, that would be 200 spills per million servings, or 2 MILLION spills per 10 billion servings. And yet, of 2 million spills, only 700 went to court? It would seem that it takes just the right combination of very rare circumstances for McDonald’s coffee to do the damage it did to that lady.

Explain that, please. If a properly-done failure analysis shows a risk that is well within the limits of accepted industry practices, just why should the company be liable for the unlucky ones? Whatever happened to having to prove, you know, things like negligence?

No, that makes them wrong. It’s a failure of lay juries to understand science and engineering. This is a problem. It has been acknowledged as a potential problem in legal journals. Cases like this, where the jury is not competent to weigh scientific and/or engineering matters, usually boils down to who’s expert is more believable. That turns a jury trial into a battle of competing witnesses, not to see who can produce the best set of facts (which the jury isn’t competent to judge), but to see who can sway the jury through faulty analogy, simplification, and appeals to emotion.

The system needs fixing.

142

Guin the photo I linked to was not of this particular instance, although I can see why you would think so. I just image-googled for “third degree burn” and found that on a site about the various burn severities. That particular image was a lady who had been scalded in a bathtub. I imagine the damage was similar, although more located in the groin than the buttocks. It also does a good job of illustrating my point about human response time. The right-hand side was obviously submerged longer(as evidenced by the more severe burn), but the burn area extends for a good deal further up her lower back and across her entire posterior. Surely when the first portion of her right side hit the water the signal was sent “this is to hot.” She was obviously unable to react fast enough to slow her descent into the water and get back up out of the water before more extensive damage was done.

Fast food comes “ready to eat/drink”. That is the entire premise behind the industry. In this case McDonald’s was more interested in making their coffee last longer than they were with keeping in line with customer expectations. By doing so they raised the “level of risk” assosciated with consuming McDonald’s coffee without informing the customer. THAT is why they lost in court. Quite frankly I think their punative damages should have been kept insanely high. They need to be shown, in no uncertain terms, that this type of behavior is unacceptable. I don’t care if it only happens in 0.0000000001% of cases.

Steven

143

Oh, for the record, I’m aware that it was not of Liebeck. However, if that’s what a third degree burn looks like, then that should, in my opinion, make anyone stop and think before they dismiss this case.

144

Sam - your cost analysis issue has (IMHO) already been correctly answered by Jodi with her succinct, but true “and then of course, the company should pay for those 0.01% cases”, which is of course, the ‘cost’ part of cost/benefit analysis" (Paraphrased)

145

Sam Stone:

Um…because you pulled that 7,000 number completely out of the air. Nice try, though. :slight_smile:

146

To which I respond with a quote of my own.

Sam, your attitude shows exactly why so many people feel powerless in todays technological world. Cost-benefit analysis, risk/reward ratios, all of these things cloud the basic issue without changing it. Let me say it plainly here, even for the non-technical people to understand.

McDonald’s chose a coffee-making scenario with a higher danger level than necessary because it would allow them to save money by not having to brew new pots as often.

Jesus H. Christ on a solar-powered pogo stick! It’s coffee! Why the hell would someone think COFFEE would carry an intrinsic risk? Why the HELL would someone do a risk analysis on COFFEE? Motor vehicles? Sure. Thousands of moving parts with tight tolerances and constant friction traveling at high rates of speed. No solution to that one, as you said, no way to make it perfectly safe. But FFS man, this is COFFEE! Turning the heat level of the hotplate down would have virtually ELIMINATED the risk. And McDonald’s KNEW THAT. When a person gets in a car they KNOW there is risk there. They know the car manufacturer has taken steps to mitigate them, but they know they exist. Tell me that people KNEW that you could get third-degree burns in three seconds from McDonalds coffee.

Car failures are unavoidable the mechanics of the devices dictate an intrinsic degree of risk that can be mitigated to tolerable levels. There is no such constraint on the temperature of coffee. The constraint was added by the company for reasons of greed. This is simply unacceptable.

Steven

147

“Negligence” is the imposition of a duty upon one party (here McDonalds) to another (the customer); breach of that duty, causation; and damages. If any one of those elements is missing, there is no negligence.

“Acceptable industry standards” is not the be-all end-all of whether a duty exists. Those “acceptable industry standards” must themselves be objectively reasonable IF a jury believed that the industry could reach absolute zero (not statistically insignificant, not less than one one-hundreth of one percent, but none) on extremely severe injuries (like this one) through a means that cost them nothing and could be done literally with the flick of a wrist – like turning the temp down on the coffee – then that jury might well conclude that “acceptable industry standards” are not, in fact, acceptable. They have every right to determine that themselves. They are not bound by what the coffee industry, or the beverage service industry, says is safe, or okay, or “acceptable” – that’s an issue of fact, for them to decide. They can see the industry standards andd reject them and, even in the face of them, find the company, you know, negligent.

148

Oh yes, and they are perfectly suited to the task, right? They understand things like log curves, and variance, and the limits of metallurgy, and arcane statistics, and an intuitive understanding of what machine tolerance on an assembly line implies, and how expensive it rapidly gets to try to improve things past a certain point.

Juries are not competant to judge matters of engineering on their own. The plaintiffs lawyers will see to that by making sure that anyone who has an engineering or science background be recused. That serves the cause of truth well.

What these cases come down to is duelling specialists. If the plaintiff can produce one with whiter hair and a better speaking voice than the defendents, they’ve got a good shot. And of course, you’ve got your professional experts running around making a living by agreeing to testify for a fee. I’m sure that produces an unbiased, objective opinion.

I think the legal system needs some reform. I’d like to see something like a technical advisory board available to advise a jury. I’d like to see juries in engineering cases composed of engineers, so they can decide the issues with some knowledge. Or perhaps some hybrid system that convenes a technical jury as a separate entity from the regular jury, and some common agreement has to be reached. I don’t know the answer, and I’m not a legal scholar. But I understand these issues are being discussed in the legal profession and academia.

149

This is not cold fusion, SAM, it’s coffee. Here’s the argument: “McDonalds incurred only a miniscule number of these types of injuries a year, as a percentage of the number of coffees sold. However, some of those miniscule number were quite severe. At no cost and very little effort, McDonalds could have reduced that miniscule percentage to none at all. But it refused to do so, choosing to maximize its profits in the full knowledge that if it left things as they were, someone, somewhere, would eventually be seriously hurt.”

Now which part of that do you think the average layperson juror is incapable of grasping?

The issue you raise is a legitimate one. There is certainly concern that in our technological world, there is more and more that is simply beyond the ken of Joe Average American. But I seriously doubt the cost-benefit analysis behind serving too-hot coffee is one of those issues to fry Joe Average’s brain.

150

At no cost? If they lower the coffee temperature, how much waste will there be if it goes cold and they have to throw it out? Look in a McDonald’s drive through in the morning rush sometimes. They generally have people making coffee and lining it up for the clerks to grab - it’s a big help to have it hot enough so that it’s still hot by the time it’s served.

If the coffee doesn’t taste as good at a lower temperature, how much money will they lose in sales to competitors? Do you have any idea? Did it even come up in court, or was McDonald’s too terrified to try to justify themselves economically?

What about the people who like lots of milk or cream in their coffee? If it’s at just the right temperature for black coffee, it’ll be too cold with 2 creamers in it.

McDonalds spends huge amounts of money and effort taste testing all of their products. They have an R&D center to test new and design new equipment, machine configurations, food recipes, etc. If they set their coffee at that temperature, it’s because they had a good reason to believe it would give them a competitive advantage. To claim that they could just lower it FOR FREE, and the implication that they didn’t because they’re a bunch of obstinate bastards, is ridiculous. And certainly a jury isn’t competant to judge was the economically correct temperature is for McDonald’s coffee.

Think about that 700 number again. Out of TEN BILLION. This is an unreasonably low number for a ‘dangerous’ beverage served through an open window to people driving by in cars. If it was as ridiculously or obviously dangerous as you’re making it out to be there should have been millions of burns. One burn in 10,000 servings would be a million burns. I guarantee you that more than one in 10,000 cups of coffee are accidentally spilled, so it would appear that burns severe enough to cause legal action only happen with the rare spill. The conditions have to be exactly right.

151

I don’t know the answer to your question. Jodi said that McDonald’s admitted that they “expected the coffee to be consumed immediately”. I said I thought that defies common sense, since certainly not everyone downs a whole cup of coffee in 2 minutes immediately upon exiting the drive through. I don’t know if they served it hotter at the drive-through.

I wanted to know if you had any more info on that admission, i.e. did the McDonald’s employee say “Everyone drinks their coffee immediately” or did he say “Some people drink their coffee immediately” or did the plaintiff’s lawyer wave a piece of paper in his face and say “I have here a survey that proves everyone at the drive-through drinks their coffee immediately”, and he said “oh, I didn’t know that.”? In other words, where did you read about the guy saying that?
This is what I read:
http://www.cooter-ulen.com/tort_liability.htm#McDonald

I’m guessing the McDonald’s witness admitted something on cross-examination, maybe? What did he say?

You gave no indication that the witness admitted “SOME people drink it immediately”. That’s why I asked if you had a cite as to exactly what he said. If McDonald’s argued that they kept it hot because people wouldn’t consume it immediately, does that have to mean EVERY SINGLE person who buys coffee?

So when you said:
"if McDonalds chose not to do something about it because it judged via a cost-benefit analysis that it was willing to live with X number of people being injured, then fine, but that did not mean that McDonalds should not be liable for the 700+ cases where it made that gamble and lost. "
you’re weren’t actually saying that they did a cost-benefit analysis and were willing to live with X number of people being injured. You just made that up?:rolleyes:

If so, then that is a straw-man argument. Coffee can still burn at temperatures less than 180 degrees. The only way a restaurant can have zero injuries from coffee is not to serve coffee at all. It is impossible to serve coffee without being willing to live with SOME injuries. You can’t serve billions of customers without ever being sued. To assume that McDonald’s does a cost-benefit analysis for every possible scenario, and then decides to “live with” injuries is absurd. They weren’t serving coffee that had poison darts flying out of it - they were serving coffee at the temperature RECOMMENDED BY EXPERTS ON COFFEE.

I said they should have appealed to the jury’s emotions. Unless my thesaurus is wrong, “emotional” is not equivalent to “stupid”. And thanks for leaving out half of my quote.:rolleyes:

Jodi, .01% is so far from the actual figure, I can’t even begin to tell you. Not only is it not in the ballpark, it’s not even on the planet. They sell BILLIONS of cups of coffee. You can’t just say “or whatever”. Billions of people drank the coffee without being injured.

But people still could be burned if they turned the heat down to 160 degrees. Oh dear, our risk is still not literal zero. Better turn it down to 140 degrees. Oops, STILL not literal zero. O.K., guess we better serve some lukewarm garbage. So I guess the choice is either serve a crappy product, or set some money aside to pay off lawsuits. Do you really think it’s possible to serve billions of people and have literally zero injuries?

:confused: Yes, we are talking about 3rd degree burns. I have no idea what YOU are talking about, and I don’t know where you are getting the figures of 3 seconds and 1 second.

Cooter-ulen.com Coffee Case

152

Sam and others who are arguing cost/benefit analysis and that McDonald’s had to serve the coffee that hot to avoid waste, there is a hole in your argument –

McDonald’s policy was not the “custom and usage” of the industry. Other companies that served coffee for profit found that sufficient profits were made serving coffee at lower temperatures.
McDonald’s was seeking additional profits over the industry norm. To accomplish that, McDonald’s decided to shift some costs over to the consumer, by increasing the risk to the consumer.
That’s simply not allowed. No one is allowed to shift their costs to another party without that party’s consent.
Viewed this way, the jury decision simply shifted the costs back to McDonald’s - “you want to make more money than your competitors by heating your coffee to a higher temperature? Fine. But you must bear the costs of that increased benefit.”

What is arguable is whether punitive damages should have been imposed. But IMO, the compensatory damages - i.e. the costs of the woman’s medical bills - rightly and properly should be paid by McDonald’s. They aimed to increase their benefit. They must bear the costs associated with that increased benefit.

Sua

153

Sam and others who are arguing cost/benefit analysis and that McDonald’s had to serve the coffee that hot to avoid waste, there is a hole in your argument –

McDonald’s policy was not the “custom and usage” of the industry. Other companies that served coffee for profit found that sufficient profits were made serving coffee at lower temperatures.
McDonald’s was seeking additional profits over the industry norm. To accomplish that, McDonald’s decided to shift some costs over to the consumer, by increasing the risk to the consumer.
That’s simply not allowed. No one is allowed to shift their costs to another party without that party’s consent.
Viewed this way, the jury decision simply shifted the costs back to McDonald’s - “you want to make more money than your competitors by heating your coffee to a higher temperature? Fine. But you must bear the costs of that increased benefit.”

What is arguable is whether punitive damages should have been imposed. But IMO, the compensatory damages - i.e. the costs of the woman’s medical bills - rightly and properly should be paid by McDonald’s. They aimed to increase their benefit. They must bear the costs associated with that increased benefit.

Sua

154

I think they were suited to the task at hand yes. I think our difference of opinion is on what the task was.**

Perhaps not. My point is that none of these factors was relevant to the decision at hand. The question is, “Was the coffee too hot?” Given the damage it caused and the timeframe in which it caused it(although I have now seen different sets of numbers presented in this thread for the amount of time it would take to produce such burns at the temperature in question and am no longer certain which is accurate.) I can see no conclusion other than, “Yes, it was too hot.”

Bringing in log curves, variances, limits of metallurgy, etc into the argument simply serves to muddy the waters. Distinctions without differences. Take the axioms on which the fast-food industry is built. These correspond to customer expectations of this type of resturant.
[ul]
[li]Convenient Locations[/li][li]Speedy Reciept of Food[/li][li]Low Cost[/li][li]Ready to Consume[/li][/ul]
I think it’s pretty clear that McDonalds behavior was outside this framework in the case of their coffee.
**

Do you have a cite for industry publications where such matters are being discussed? I’d be suprised if they are talking about issues like this as opposed to issues such as computer crime or manufacturing defects in complex devices. A process which produces a cup of coffee is orders of magnitude simpler than a process which produces an automobile. A simple process should not necessitate a Risk Analysis or a technical advisory board.

Can you provide a cite with evidence that McDonalds ever did such an analysis? The evidence I’ve seen presented indicated that they knew there was a danger, but had not consulted a burn expert to help determine the level of risk. This action would seem to be a pre-requisite for a risk analysis and the lack of such data would seem to preclude the possibility of “a properly-done failure analysis [which] shows a risk that is well within the limits of accepted industry practices”.

Without eivdence that such a risk analysis was done, and presented to the jury, what you are saying is that the jury was incapable of understanding non-existant results of technical analyses.

Much like Sam, I believe technical experts have a duty to speak up and help make tecnhical issues more easily understandable by a lay audience. This belief makes me want to support the creation of such an Advisory Board for legal matters involving technical issues.

Apparenly unlike Sam, I also believe technical people have a duty to keep their mouth shut and keep from muddying the waters when the laypeople already have a firm grasp on the root issue. This belief makes me speak out against people who say it’s necessary to run a Risk Analysis on the process of making and serving Coffee at a fast-food resturant.

Steven

155

Like so many areas of law it is in a state of flux. We seem to be moving from the general rule to admission in the case of strict products liability. Connecticut just passed a law allowing SRMs in SPE which takes effect in October.

I see one problem: this encourages companies to not take remedial action until all litigation is concluded (years). Of course, they must balance that against the risks of future injury. We just can’t get away from doing CBAs can we?

The Florida Rule:

This is the only rule that matters to me.

Of course this is a tangent / outright hijack: Robb asked.

156

Okay, blame the whole thing on me. :wink:

157

First of all, I think you’re taking Sam’s argument out of context. Sam Stone was RESPONDING to Jodi’s assertion that McDonald’s could lower the temp of the coffee at no cost (emphasis mine). As far as disproving that one assertion, I think he is correct.

Second, I keep hearing this argument that McDonald’s willfully decided to injure people in order to make more money.

From what I have read on the subject, McDonald’s argued (among other things):

a.) They were serving the coffee at the proper temperature to assure QUALITY.
b.) Lowering the serving temperature would decrease the quality, but would not eliminate injuries.
c.) Statistically, the number of people who were burned from coffee in the prior 10 years was virtually zero.

Now, if McDonald’s lawyers actually did argue that they allowed people to be injured solely for increased profit, that would have been the legal blunder of the century, and I’m afraid I would have to ask for a cite on that.

158

Oops - looking at some of Sam Stone’s earlier posts, I guess you didn’t take him out of context. Sorry about that. Please ignore my first paragraph, but read the rest of what I wrote.

159

BLOWERO, I was wading through your post and making mental notes of my response, and then I got the the second roll-eyes smiley and I just thought, the hell with it. Make of that what you will.

SAM –

When I said “at no cost,” I meant “no cost in remediating the situation” – i.e., they could fix it at no cost to them, all you have to do is turn a knob. I am aware that it “costs” them to serve cooler coffee; it also costs them to serve beef they have to buy instead of stray cats they round up. It “costs” them to have the restaurants cleaned every night.

They have every right to maximize their profits, but they cannot do so at the expense of their customers. Or, if they choose to gamble and do so – then they reasonably have to pay for the very very few occasions when they lose that gamble. In other words, what SUA said.

160

Jodi, I apologize if I offended you. I don’t think I have been any more sarcastic than anyone else in this thread, yourself included, and I have been making a conscious effort to try to only attack people’s arguments, not the people personally. I’m truly sorry you feel that you don’t want to participate anymore.:frowning: