Saturday, August 18, 2007

I am sure everyone is aware of the McDonald's cheeseburger case, but let me hit the highlights. A man in West Virginia ordered a quarter pounder with no cheese. He has a severe allergy to cheese, enough to cause a potential life-threatening reaction, and told the staff 5 times to hold the cheese. Of course, they put cheese on his burger (who out there hasn't had problems with this). The man went home to watch movies with his friends (apparently in a dark room), bit into the burger, and within minutes began having a severe allergic reaction. He was rushed to the hospital and treated. Fortunately, he survived with no adverse outcomes. Now, he is suing McDonald's for $10 million. His friends have also filed suit claiming their lives were put in danger because they had to rush him to the hospital. And here we go again.

First, before we start assaulting McDonald's, let's not forget that the plaintiff still has the majority of the responsibility here. Yes, he told them 5 times no cheese, but still I wonder: Why didn't he check to make sure the order was right before taking a big bite from the burger of death? Again, we've all been victimized by incompetent fast-food workers and it seems like he put a little too much trust in them. Thankfully, I don't have any serious allergies, but if I did and there was possibly something on my burger that could kill me, I would check before I ate it. This guy shares some of the blame for his brush with death and that should not be forgotten. And his friends? Come on. If they're going to sue McDonald's then they should also sue their friend - since he is partially to blame.

As fas as the lawsuit, it sounds a bit ridiculous. $10 million? I understand the concept of punitive damages. They are meant to be just that...punitive. And you can't punish a billion dollar company with small awards, so the damages have to be hefty. That's why a woman gets $3 million for spilling coffee on herself. I don't think punitive damages are always bad. Sometimes big industry needs to be punished. However, I do believe these damages should not be given to the plaintiff or his attorney. That just encourages unnecessary litigation. Punish the offender. Give the money to charity. That will eliminate a good deal of the frivolous lawsuits that are gumming up our courts.

Finally, if I'm a juror the plaintiff would have to convince me that the McDonald's corporation was the one at fault, and not some careless burger-flipping teenager at the grill. I would like to see company policy on special orders, mechanisms for checking those orders, and disciplinary procedures for employees that don't uphold company policy. I would think that it is McDonald's policy to give the customers what they ask for. Expecting them to police every single employee is unrealistic. So, if this guy has a case, then it appears his case is with the person who made the burger more so than the company he works for. Why isn't he suing that person? We all know the answer to that.

Similar things happen in medicine. A doctor writes an order for a medication. The order is correct, the medication is appropriate, but the nurse mistakenly gives the wrong thing and it causes a harmful event. Who gets sued? That's right...the doctor. Why? Because the doctor is the one with the money. Is that fair? Of course not, and it's one of the reasons why many states are currently in medical crisis. So that's why I think my idea about awarding punitive damages is the right idea. A person shouldn't get $3 million for basically being an idiot and not realizing that coffee is hot and may burn. Cover the medical costs and damages for the plaintiff, but give the punitive award to someone who shares none of the blame. I think it would go a long way to solving some of the problems of our litigious society.


The Loop Garoo Kid said...


I am walking out the door and will only comment in detail later if you fail to retract this nonsense.

A woman spills coffee on herself. She bought it at a McDonald's drive through. MacDonalds is aware that by brewing and serving the coffee as hot as they did, that spilled coffee would severely burn human flesh.

Is it foreseeable that people who buy coffee at drive throughs will spill it on themselves?

So a woman spills coffee on herself that McDonalsds knows will burn human flesh if spilled on it and of course who is so stupid as to believe that nobody who buys coffee at a drive through will spill it on themeslves.

The woman spills the coffee in her lap AND SUFFERS THIRD DEGREE BURNS ON HER GENITALS. (I wanted to get your attention here and I will let the Dr. tell his readers what happens to human flesh when it suffers 3rd degree burns.)

The woman only asked McDonalds to pay her medical bills which are considerable considering the skin grafts that were necesssary to treat her GENITALS WHICH SUFFERED THIRD DEGREE BURNS and McDonalds tells her to go pound sand.

The woman is awarded damages by the jury. The judge reduces the damages. So should the damage award go to charity? Maybe it should be used to pay for the woman's medical bills. (See I think doctors and hospitals should be paid for their services if possible.)

Let's see a show of hands here. You are injured through the acts or omissions of another person. Let's say you SUFFER THIRD DEGREE BURNS ON YOUR GENITALS.

Anyone think you are not entitled for an award for pain and suffering. How about an award to pay your bills? How about an award to pay for the income you lost while yoiu were unable to work? Suppose the injury prevents you from working in the future? Should you get an award for future lost income? Should you get an award for being disfigured?

Or should we give the $ to charity?

It's shortly after noon where I am. I will give you 24 hours as I think you are a well meaning person and I do not wish to embarass you on this.


John Washburn said...

At no point in this post did I say anything about not covering medical bills or damages. At no point did I say anything about not covering pain and suffering. This post is about punitive damages. Loop, I think you should read things more carefully before going off the deep end. I refer to punitive damages, that is anything BEYOND medical bills and damages, anything that is meant strictly to be punitive to the offender.

I'll accept your apology for misrepresenting my words.

John Washburn said...

And to clarify a few points. It is untrue that McDonald's brewed their coffee KNOWING that it would cause third degree burns. It is true that they brewed their coffee at a temperature higher than any other fast food chain.

It is true that this person suffered third degree burns, but not solely from spilled coffee. The burns occurred when she spilled the coffee on a particular undergarment that essentially melted to her skin. Whether or not McDonald's should have foreseen this is a question for the jury.

McDonald's claimed that the higher temperature enhanced the taste of their coffee. Fine. But with that comes consequences, which is why I think they were liable for damages. The fact that they refused may have made punitive damages reasonable. I'm not arguing with any of this. Again, I'm stating that these people hold some responsibility for what happened and because of that, any punitive award should not be given to them or their attorney.

The Loop Garoo Kid said...


More later but by "offender" I assumed you meant tortfeasor. Did you mean the filer of a frivolous law suit? In my state, if law suit or any part of one is found to be frivolous, the other party may be entitled to an award of attorneys' fees and out of pocket costs. So if that is the award to which you refer, wouldn't it be better to give it to the offended party?

By the way, my research reflects that Stella Liebeck, the McDonald's plaintiff, was wearing cotton sweatpants which absorbed the hot coffee and kept it close to her skin.

Again, you state "frivolous law suits that are gumming up our courts." In my state, frivolous law suits are not gumming up our courts. Civil filings have remained steady or have decreased.

What is the source of that particular pronouncement.

Im, my state, in the ad damnum clause of a complaint, a palintiff or counterclaimant may only ask for "an amount to be proved at trial" and may not ask for a specific dollar amount when damages are unliquidated.

A plea for punitive damages may not be included in the complaint but may be added later if there evidence to support such a claim.

Punitive damages are limited to the amount of actual damages. Unlike most actual damages, punitive damages are taxable.

Sure, there are frivolous lawsuits although the one that currently is making my collegues and I cringe in the 54 million dollar pants suit filed by an ALJ in Washington, D.C. against some korean dry cleaners. He lost but now is threatening to appeal.

So of the thousands of lawsuits filed, a few are frivolous. Castigating the lawyers and plaintiffs however which by implications casts aspersions on all attorneys and all plaintiffs and on thesytem itself, is akin to finding an instance of medical malpractice and concluding that if one doctor made a mistake, you can't trust doctors.

I will tell you how difficult med mal cases are in my state later. But do me a personal favor which will only redound to the enhancement of your stature as a commentator.

If you want to go after an attroney, make it someone like Mike Nifong. Also, make sure that you are not merely spreading the propaganda the insurance industry has promulgated for the past quarter century.

Someday, God forbid, you may be sued for medical malpractice. Who will be your friend then? As Archilochus advised: "Keep a mercenary for a friend to stand by in battle."


John Washburn said...

Loop, when you put words in my mouth then I am forced to repeat what I have already said for clarity. I don't mind doing that, but it is hardly good for constructive debate. First, you claim that I don't support awarding damages to victims. Then, you seem to think that this post was meant to "go after an attorney" and that I "casts aspersions on all attorneys and all plaintiffs and on thesytem itself". I have done no such thing. This isn't about attorneys. This is about my notion that a victim is not entitled to collect punitive damages, especially when the victim holds some responsibility in the matter. Punitive damages may be awarded, but shouldn't be awarded to the victim or their attorney.

I am not casting aspersions. I am not going after attorneys. I claim that frivolous lawsuits are a problem in this country, and you seem to agree, although may not think it's as much a problem as I. The cheeseburger suit in question may be one of those frivolous suits, depending on what kind of damages the plaintiff can prove. I don't know.

I have gone after Nifong, and am happy to see he is getting what he deserves. I have also gone after those involved in the dry cleaning suit.

It looks like my facts were a bit off in regards to the young lady's garment. I'm sure you have better sources than I. I have no problem yielding that point. But, the mechanism remains. It's doubtful her burns would have been as bad if the spill was directly on skin.

So, despite the back-and-forth, there actually doesn't appear to be any points of dispute here, unless you want to debate about who should be awarded the punitive damages (and by offender I mean the one found negligent).

If not, then I respectfully request that you not mis-state what I say.


A fickle jury (?) often enjoy giving away money, more-often than not...unskilled in jurisprudence, emotionally decides precisely Who committed the tort (wrong). Uh huh.

a) The careless teenage server;

b) the clumsy driver, with cell-phone, or blaring radio in hand;

c) her husband, playing w/dog;

d) Deep-pockets McDonalds?

e) Ambulance-chasing Attorney?

f) Incompetent Judge Ito?

Answer: Punitive Damages, beyond the Pain & Suffering, and Legit Medical? Only if the client's attorney can clearly establish, with a Preponderance of the Evidence, Fault, or Malicious Intent.
Proof Of Responsibility Is the Key.

Donating excess to a worthy charity? Hey, that could set a Precedent, and minimize Frivolous Law Suits! Hmm. reb

The Loop Garoo Kid said...

Damages vary from juruisdiction to jurisdiction. In mine, there is a higher burden of proof to prove punitive damages.

Exemplary or punitive damages may be awarded when the defendants actions have been accompanied by circumstances of malice or fraud or committed w/ a reckless disregard for the plaintiff's rights and feelings, i.e. getting behind the wheel of an automobile when drunk and causing an accident.

Punitive damages are meant to punish. The McDonalds jury awarded the plaintiff one day's worth of coffee sales from McDonalds. The judge reduced the award, finding it excessive.

I am mostly for having there be some type of relationship between actual damages and punitive damages but if you have a multinational company worth billions whose acts or omissions were truly egregious and the plaintiff's punitive damage award is limited to actual damages, the punitive damage award does not punish. One or two million dollars, a considerable sum for an individual, is a drop in the bucket of a company the size of McDonalds.


Runaway juries are mostly a myth, the stuff of which novels and movies are made. Trial lawyers are fighting a quarter century smear campaign by the insurance industry. There are books and courses on how to try and neutralize jury prejudice b/c when you walk into a courtroom, the count is already 0-2.

I could go on for pages about this but take my word for it.

Two more points: There is a concept in the law called comparative negligence which has superceded contributary negligence. Contibutary negligence was a harsh doctrine b/c it barred the plaintiff's recovery if the P were neg to any degree.

Comparative negligence comes in two flavors: pure and modified.

MO has pure comparative negligence. If the plaintiff were 90% negligent and the defendant 10% negligent, the P could still recover 10% of his damages. Why bring a case like that? When the damages are catstrophic and you are attempting make some recovery.

My state has a modified comparative negligence law. So long as all of the D's negligence is > than the P's, the P recovers, pro rata, from each D, but if P's negligence is > or = to that of all the D's, P makes no recovery.

Damages are $100K.

D is 60% neg and P is 40% neg, P recovers $60K

D is 50% neg; P is 50% neg, no recovery.

D1 is 50% neg; D2 is 10% neg; P is 40% neg: P recovers $50K from D1 and $10K from D2.

D1, D2, and P are all 1/3 neg, P recovers $33,333.33 fro each D.

Punitive dams are also subject to apportionment.

Sure the McDonald's cheese P was comparatively neg. To what degree is a ? for the jury.

May his mom and buddy recover. Depends. Probably not in my state where the "zone of danger" rule applies.

Here is the real problem. The pants and cheese lawsuits make the news b/c they are different.

What does not make the news are the cases where P was stopped in a line of traffic or at a traffic control device. D runs into the rear of his car @ 25 mph--which is a big hit as a car travelling 25 mph is moving @ about 38 ft/sec.

P treats for 9 months w/o really regaining preaccident status so his txing dr. testifies he has suffered a permanent injury. Meds are $15K; lost wages $2.5K.

The jury rules no neg; no injury; no causation.

I can't tell you how many times I have seen that one.


Rob Scot said...

I like the idea of giving the damages to charity; it would no doubt cut back on the lawsuits, while those that were brought to trial would serve some meaningful purpose other than lining the pockets of lawyers and plantiffs with no common sense.

The Loop Garoo id said...

Hey rob scot,

Spokern like a person who has no clue about about our legal system.

You are precisely the kind of person who I hope never to see on a jury panel. Unfortunately, I do.

From your statement, it would appear that you too believe that our civil law system is somehow broken b/c of a few anamalous cases where "the Plaintiff has no common sense."

If the plaintiff has been damaged; and the conduct of the defendant was attended by circumstances of fraud, malice, or wwilful and wanto conduct, why shouldn't the plaintiff, the injured party, receive teh punitiver damages award?

Dr. here is where you and Mr. Scot seemed to have abandoned common sense for some sort of visceral response.

Plaintiffs and lawyers only (well 99.9% of the time) file lawsuits where there are actual damages.

"Wave your missing limb at the Dr,. and Mr. Scot, Mr. Plaintiff."

Punitive damages arew the exception and not the rule.

Mr. Scot, your use of the phrase "lining the pockets of lawyers and plaintiffs" demonstrates where your prejudice lies. How unfortunate for all of us. I can only hope that you are never injured by the careless acts or omissions of another person lest you seee someone w/ your attitude in the jury box.

By the way guys, I have one question. Suppose we implememnted yourt idea and gave punitive damages to charity. Who decides what charity receives the $?