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View Diary: John Edwards, Trial Lawyers, and McDonald's Coffee (223 comments)

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  •  Corrective action (2.50)
    Did McDonalds reduce the temperature of their coffee?  In their restaurants, coffee is self-serve.  Was this a reaction to this particular lawsuit?

    Lawsuits (and punitive damages) are one feedback mechanism for behavior modification.  It would be useful to know if the number of people burned by McDonalds cofee went down after this lawsuit.

    Power that legitimizes meanings by concealment of power relations, adds unique symbolic force to those power relations --Bourdieu (paraphrased)

    by dotpeople on Sun Aug 01, 2004 at 03:18:16 PM PDT

    •  Real question (1.08)
      should be: Have the number of stupid people gone down.

      Answer: No, so I would bet that the number of coffee spills is the same or higher.

      Anyone have the answer?

      (I am one that thinks one should have some personnel responsibility. Remember the cup is marked "HOT". But then stupid people don't read. So maybe the flaw here is to have someone read it to them.)

      Well to the middle, but progressive on ALL solutions.

      by Great Hunter on Sun Aug 01, 2004 at 03:24:07 PM PDT

      [ Parent ]

      •  Folks, This Person Lives Under a Bridge (3.44)
        Developing a reputation very quickly, and soon to flame out.
        •  Definition of troll (2.00)
          Raising a difficult or unpleasant opinion, even one which strong disagrees with the OP, is not trolling.  I am a bit disappointed in the moderation on this portion of the thread.

          sPh

          •  Give Me a Break (4.00)
            Go look at this person's posting history, and then come back and defend him if you must.

            This is not a person who appears to be here for honest discussion as much as provocation.

            Do you honestly think I would refer to somebody as a troll based on a single non-inflamatory post?

            BTW, loved that you rated me a troll.  Quite humorous, I must say.

          •  sphealey, Heal thyself (4.00)
            If you don't like troll ratings for controversial but genuine opinions, why did you troll rate DHinMI?  Doesn't it fall under the category you think should not be troll-rated? Do you even know what the term means? I'm not just trying to insult you. I think you've made up your own meaning to the term if you apply it to DHinMi's post but not Great Hunter's.

            Don't understand NY politics? Try The Nor'Easter

            by jd in nyc on Sun Aug 01, 2004 at 04:27:41 PM PDT

            [ Parent ]

            •  Because the response fit the definition? (none)
              > If you don't like troll ratings for controversial
              > but genuine opinions, why did you troll rate
              > DHinMI?  Doesn't it fall under the category you
              > think should not be troll-rated?

              Because the response, unlike the OP, did not contribute anything meaningful to the discussion?  Its only purpose was to inflame opinion against the OP?  And while that doesn't exactly fit the traditional definition of a troll:

              http://www.catb.org/~esr/jargon/html/T/troll.html

              it is reasonably close?

              Saying "this person lives under a bridge folks" is not a meaningful response to the expression of an opinion which is widely held - even if you believe that opinion is incorrect or that other posts by the comment author were inflammatory.

              I am also not a big fan of people jumping in with multiple comments and comments refutations on their own essays, but that is perhaps just a personal thing.

              I am now deeply disappointed with the moderation on this thread.

              sPh

              •  the contribution (3.66)
                First, why in the world shouldn't the entry writer also post in the thread? I actually much prefer that. It means the OP is willing to get down and dirty with the rest of us, and doesn't set him/herself off, aloof from the rest of us. Are you worried that s/he will be too much of a bully? Please. If we can't handle it with the freedom and anonymity that comes online, we can't handle it anywhere.

                DHinMi's post was not meant to inflame, but was meant to reduce or prevent an overly heated exchange. In other words, the opposite of trolling. It was also informative. It pointed us to this person's history of posting, and we can then go look it up and decide what we think about it.

                I'm not claiming DHinMI or any other main page poster has no ability to influence how others think. If there were no influence at all, there would be no reason to post, would there? I hope we're not all just yakking in to the void.

                Don't understand NY politics? Try The Nor'Easter

                by jd in nyc on Sun Aug 01, 2004 at 05:19:20 PM PDT

                [ Parent ]

              •  Well, while you may not be ... (4.00)
                ... a big fan of people jumping in with multiple comments and comments refutations on their own essays, other readers get irked when an essayist doesn't engage after a controversial post.

                My goal when I post an essay is to get a discussion/debate going, and if I abandon the thread after my first contribution, then I feel I've not lived up to my part of the deal.

                Hooray for girlie men.

                by Meteor Blades on Sun Aug 01, 2004 at 05:26:37 PM PDT

                [ Parent ]

                •  One of my mantras (4.00)
                  Diary writers, main page and otherwise, should ALWAYS be avaiable to engage in the discussion.

                  My rule _ I don't post a diary unless I can be avaiable to respond for at least an hour or so.

                  "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                  by Armando on Sun Aug 01, 2004 at 05:46:16 PM PDT

                  [ Parent ]

              •  Moderation in this thread (4.00)
                (I'll refrain from making a pun on the word "moderation")

                Thing about dKos is, barring egregious behaviour, the vast majority of posts here are "moderated" collectively. That is to say, when someone is way out of line, the zero and 1 ratings go through the roof: big flashing red wanring light. Except in very rare instances, there's nobody in a room somewhere monitoring the threads and making sure people follow the rules. We do that for ourselves.

                And it's absurd to demand that the diraist not post his own comments and responses -- for god's sake, that's the whole point of posting a diary, to have a frigging discussion.

                I suspect that if you did a little homework on the Troll in Question, say, for instance, reading past diaries and posts of his, you'd get an idea that, in the aggregate, he is, in fact, a big fat stinking troll. Check out his ratings history, too, while you're at it. He is more guilty of punitive troll rating than anyone else on this thread.

                Look before you leap into the fray, dear.

                Maryscott O'Connor -- Rage, rage, against the lying of the Right.

                by Maryscott OConnor on Sun Aug 01, 2004 at 05:37:41 PM PDT

                [ Parent ]

              •  Unhappy With Moderation or With Disagreement? (none)
                Funny that you've twice said you were unhappy with the moderation.  Maybe I'm making more to this that necessary, but I couldn't help but notice that when you first said that you were unhappy with the moderation, I had only made two comments, the one about Great Hunter, and this comment, disagreeing with you.  Seven minutes later, you were unhappy with my moderation.  

                What about my "moderation" on this thread could you really be unhappy in the first few minutes it was up...you know, besides the fact that I respectfully disagreed with you?

                •  You suck (none)
                  Lousy moderator!  Haha.  One of the best DHinMi.  But you don't need me to tell you that.

                  "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                  by Armando on Sun Aug 01, 2004 at 05:51:46 PM PDT

                  [ Parent ]

          •  Pot, meet kettle (4.00)
            Your argument against punitive troll-ratig holds no water when you engage in punitive troll-rating yourself, dear.

            hypocrite

            Hyp"o*crite, n. [F., fr. L. hypocrita, Gr. ? one who plays a part on the stage, a dissembler, feigner. See Hypocrisy.] One who plays a part; especially, one who, for the purpose of winning approbation of favor, puts on a fair outside seeming; one who feigns to be other and better than he is; a false pretender to virtue or piety; one who simulates virtue or piety.

            Maryscott O'Connor -- Rage, rage, against the lying of the Right.

            by Maryscott OConnor on Sun Aug 01, 2004 at 04:36:22 PM PDT

            [ Parent ]

      •  Missing the point (4.00)
        McDonalds intentionally kept their coffee hotter so that they could re-serve it over longer periods and customers wouldn't be able to taste it. Marking it as "hot" does not warrant serving a dangerous product.
        •  OK (1.35)
          I drive a car knowing it can kill me and it is a very very dangerous product.

          I drink hot coffee knowing that if I spill it it will burn me.

          I take responsibility for my actions. Some folks don't, so they use the system of Lawyers to get some dollars for free. That's the system We have, and we all pay for that litigation.

          Well to the middle, but progressive on ALL solutions.

          by Great Hunter on Sun Aug 01, 2004 at 03:36:01 PM PDT

          [ Parent ]

          •  Actually (4.00)
            The argument is one of economic efficiency.  You have it exactly backwards.

            It is more economically efficient to have McDonald's modify its procedures with regard to coffee temperature than have many people (call them stupid if you like) suffer health problems and impose the cost of those medical procedures on society.

            Imposing liability on McDonald's is the economically efficient policy.  Read your Posner.

            "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

            by Armando on Sun Aug 01, 2004 at 03:40:04 PM PDT

            [ Parent ]

          •  The system certain people ... (4.00)
            ...would like to have is one in which companies have no liability for shoddy or dangerous products.

            Dagger points on a toy for toddlers? Daddy should have known better than to buy it.

            Exploding Pinto? Well, hey, gasoline is dangerous.

            Blender motor that starts kitchen fires? Stir your smoothie by hand.

            I love the crowd that says we should never let litigation get in the way of profit.

            Hooray for girlie men.

            by Meteor Blades on Sun Aug 01, 2004 at 03:43:37 PM PDT

            [ Parent ]

            •  Look what they're doing (4.00)
              What corporations are doing is foisting costs onto others.

              The good that a business does economically is that it generates wealth, turns effort into goods and services. Right? But doing this also has costs. It costs them, it costs the consumer, it costs society (externalities). It costs them, not just for raw materials and salaries, but there's also the cost of doing business and the opportunity cost of not making something else. It costs consumers in a similar way. And then there are all the externalities.

              Serving coffee at 180 degrees Fahrenheit (212 is boiling, 130 will scald on contact) does give McDonald's cheaper coffee in a certain sense, and that lower price might be passed on to consumers, but you have the externality of the medical costs of people who are severely scalded. A corporation has every incentive to try to get out of having to pay for these externalities, through obfuscation, litigation, and legislation, even though most laissez-faire economists will tell you that making people pay for the externalities they impose on other people is a legitimate use of government taxation power, and is in fact necessary in order for economic efficiency to coincide with social welfare. In other words, necessary for a just economic system.

              Externalities are difficult to quantify, and at a certain point the causal linkage becomes so remote that it becomes implausible. Moreover, I'm not trying to make the argument that the monetary costs of cooler coffee are outweighed by the monetary costs of medical care for coffee-scalded victims. What I am saying is that Stella had a reasonable expectation that having her coffee wouldn't be dangerous, and that spilling it on herself wouldn't cause grievous injury. McDonald's pushed this risk onto Stella without telling her or anyone else about it. She never consented to taking the risk, and the rest of us McDonald's consumers never did either.

              It seems I can hear God say to America, "You are too arrogant, and if you don't change your ways, I'll break the backbone of your power."

              --MLK

              by Melissa O on Sun Aug 01, 2004 at 05:24:16 PM PDT

              [ Parent ]

          •  Responsibility (4.00)
            I take responsibility for my actions.

            McDonalds did not take responsibility for their actions.  

            700 incidents of declined optional responsibility are cause for 1 incident of mandated responsibility.

            Since the coffee temperature went down after this lawsuit, responsibility was not only (finally) taken, the degree of future injuries was reduced.

            Power that legitimizes meanings by concealment of power relations, adds unique symbolic force to those power relations --Bourdieu (paraphrased)

            by dotpeople on Sun Aug 01, 2004 at 03:48:06 PM PDT

            [ Parent ]

          •  Great point (4.00)
            > I drink hot coffee knowing that if I spill it it will burn me. I take
            > responsibility for my actions. Some folks don't, so they use
            > the system of Lawyers to get some dollars for free.

            This is a great point!

            Let's do away with trial by jury, where they spend weeks hearing testimony from both sides and deliberating on the evidence presented by both sides. Let's amend the Constitution to replace juries hearing evidence with people posting on blogs based on incomplete info they hear from sound bites on the news. It seems to be working great here.

          •  One valid point here (4.00)
            We actually don't live in a fool-proof or drunk-proof world in which, no matter how stupid you are or how reckless/thoughtless your action, it's somebody else's fault if you get hurt.  Ignorance of the Laws of Physics is no excuse for getting hurt.

            Taking personal repsonsibility for one's actions is not a Republican family value, it's actually a fairly sane approach to the world.  Which is not to say that all personal injury lawsuits are frivolous.

            don't always believe what you think

            by claude on Sun Aug 01, 2004 at 04:07:18 PM PDT

            [ Parent ]

            •  As my 1st year Torts professor put it: (none)
              One the one hand, we don't want to let car manufacturers sell cars that have a 25% chance of spontaneous combustion, no matter how cheap the car and no matter if someone is willing to buy it.

              On the other hand, its silly to try to build a fool-proof world.  Sure, we could sell a completely indestructible car.  But it would be a car completely encased in armor plating, couldn't go faster than 15 mph and would cost half a million dollars.

              •  That's different (none)
                The economic analysis leads to a different result.

                "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                by Armando on Sun Aug 01, 2004 at 05:01:26 PM PDT

                [ Parent ]

              •  I'm quite rabid (none)
                on both stands.

                I want to stomp on greedy companies whose shoddiness injures people.

                I also want to scream at people "how could you be so stupid/careless/spaced-out as to do that to yourself and then expect some one else to take resposibility?

                Isn't there a saying about true intelligence being the ability to carry two conflicting views and not be crazy?

                don't always believe what you think

                by claude on Sun Aug 01, 2004 at 05:05:29 PM PDT

                [ Parent ]

                •  But they are not conflicting Claude (none)
                  The idea is not that McDonald's should be strictly liable - it is that McDonald's should take reasonable steps to avoid causing foreseeable injury.

                  In DHinMi's diary, he explains that the jury apportioned some blame to the Plaintiff, thus reducing the award.  The jury found that the bulk of the blame fell on McDonald's.  This is common garden variety stuff.

                  "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                  by Armando on Sun Aug 01, 2004 at 05:12:06 PM PDT

                  [ Parent ]

                  •  I think the jury took one look (2.50)
                    at the little 81 year old lady and opened the cash register drawer of the big bad McDs company is what happened.  

                    And I think you may be being a little too cute by half.  As a fellow member of the bar, you know as well as I do that just because a jury concluded X or awarded $Y, doesn't neccessarily mean much. Besides just getting it wrong sometimes, juries are notoriously subject to varied biases, one of which is the poor little old lady or the little Billy plaintiffs.

                    We don't use juries because they are all seeing; we use them because we prefer them to the alternative. (An alternative which civil law countries in Europe for example, are quite happy with.)

                    •  Here's my position (none)
                      Repeal the 7th Amendment.  Whose with me?

                      But until such time, it is  a Constitutional right.

                      "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                      by Armando on Sun Aug 01, 2004 at 06:02:51 PM PDT

                      [ Parent ]

                      •  that's not my point and you know it (none)
                        My point is that merely because one jury awarded a fat award to the coffee lady, doesn't mean their cost-benefit calculus was correct, or even if they made one.  Juries get it wrong all the time, esp. will little white haired old lady plaintiffs are involved.
                        •  also, the right to a jury (none)
                          in civil cases does not apply to state courts, as you know.
                        •  Now who's being disingenuous? (none)
                          If the size of the award is what bothers you, don't bother.  Any jury award that is ridiculously high (and most that are not) is guaranteed to be reversed on appeal by a panel of comfortable judges that never saw the trial.  Their consciences are shocked by anything over the annual salary of a judge.
                        •  Juries get it wrong... (none)
                          Of course.

                          So do lawyers.

                          So do judges.

                          Do you know anyone who doesn't?  No?  

                          Good, then STFU.  Juries are--at least when not abusively distorted when empaneled--the worst judicial system ever devised.  Except for all the others.

                          I'll take a jury over a hanging judge.  

                          (After my own extended family watched a judge rape the intent of a deceased family member's will and trust... I got a button that read "Why rent a  alawyer when you can buy a judge?"  It's more cynical than I actually am... but it was clear to me then that one reason for a jury is that it's often... usually... harder to fix a jury.  Not that some in the legal profession haven't sought to figure out how)

                          A liberal is a conservative who's been through treatment. -- Garrison Keillor

                          by ogre on Sun Aug 01, 2004 at 07:40:13 PM PDT

                          [ Parent ]

                        •  LOL! (none)
                          Little white-haired old lady plaintiffs who had to have skin grafts done -- you forgot a very germane part of the characterization, there.

                          You didn't read the whole story at the start of this thread, I take it.

                          "Often it does seem a pity that Noah and his party did not miss the boat." (Mark Twain)

                          by cinnamondog on Sun Aug 01, 2004 at 09:49:29 PM PDT

                          [ Parent ]

                    •  Finally (none)
                      someone with the guts to spill the beans on this story.... Follow the money I always say.

                      Well to the middle, but progressive on ALL solutions.

                      by Great Hunter on Mon Aug 02, 2004 at 06:08:57 PM PDT

                      [ Parent ]

                •  Gotta agree with you here ... (4.00)
                  ...when I was on the editorial page at the late Los Angeles Herald-Examiner in the late 1980s, about three or four times a year we would write one of what we called our "Hey, stupid!" editorials.

                  For instance, every year some toddler drowns in a swimming pool because daddy or mommy takes a phone call or loads the dishwasher or glances at "Days of Our Lives" too long. A fence, or better yet, a pool cover, would rescue these dumbbells from never-ending grief. If a child's life wasn't lost, one could say the idiot parents have gotten their just desserts.

                  On the other hand, when a pool vacuum pump sucks out a kid's intestines, the parents aren't to blame.

                  Hooray for girlie men.

                  by Meteor Blades on Sun Aug 01, 2004 at 05:18:05 PM PDT

                  [ Parent ]

                  •  In construction, we joke about... (none)
                    ...drunk-proof as building an outdoor deck (for instance) strong enough that even if a hundred people were on it, drunk and jumping up and down in unison, it would hold them.  This is "drunk-proof".  We think about this a lot, because the builder is the first person the lawyers look at if something breaks.

                    don't always believe what you think

                    by claude on Sun Aug 01, 2004 at 05:59:21 PM PDT

                    [ Parent ]

                  •  amen (none)
                    and it's good to see you more and more back with us, Blades. Your difficulties don't seem to have affected your thinking ability any...

                    don't always believe what you think

                    by claude on Sun Aug 01, 2004 at 06:15:51 PM PDT

                    [ Parent ]

          •  I don't know about you, (none)
            But I wear my seatbelt all the time, have a car with airbags, and try not to drive 20 degrees mph hotter faster than the rest of traffic.
            •  seat belts, air bags and... (none)
              ...driving fast enough to get away from the pack of the mindless running bumper-to-bumper in clots.  A little space around you is the first line of defense.

              That's easy in NM, where we still have the space...

              don't always believe what you think

              by claude on Sun Aug 01, 2004 at 06:03:54 PM PDT

              [ Parent ]

          •  In GreatHunter's world... (4.00)
            ...anyone who watches their child become severely injured or kiled as a result of corporate wrong doing, immediately thinks, "Ka-CHING!!  Hooray, I just won the lottery!"  One might wonder if GreatHunter is applying his own psychology to others.

            I drive a car, knowing it is dangerous.  Des it follow that, when the drunk driver runs a red light at 80 per, smashing my car, my family and me, that that's just part of the risks of life and I shouldn't have a remedy?

            How about when the car company discovers that a defect in their car can cause the gas tank to explode when the car is rear-ended while the turn signal is blinking--and says, "sell it anyway, and don't tell them about the defect.  To recall and fix it would cost extra."  I've actually heard Republicans say that lawsuits aren't necessary---the market will fix the problem because such a car maker will lose the trust of the public and go out of business.  Which will somehow compensate me for my permanent disfigurement.

            "Personal Responsibility" for the masses; socialism for the rich.  That's the Republican way of doing business, not ours.

            •  A comment that assumed a mind of its own (none)
              [Note: This comment started humbly, but soon bloated itself beyond all recognition. Oops. And in case there is any misunderstanding, I agree with you AdmiralNaismith.]

              How about when the car company discovers that a defect in their car can cause the gas tank to explode....

              Or how about this one:

              In 1971, the automakers led an industrywide effort to convince federal officials to adopt a minimum standard for roof strength--but only after their vehicle fleets failed the government's first proposed test, according to internal corporate documents examined by The Detroit News.

              The industry wanted "something that will allow our vehicles to pass," Peter Bertelson, who headed Ford's crash-test programs in the late 1960s, told The News.

              My favorite part of the lobbyist-written standard, (FMVSS 216--it's still the standard in the US, by the way, though it's currently under a long-awaited review) is the part about how the roof-crush tests must be conducted with the windshield intact. That's right, the windshield glass is a structural component in many automobiles (i.e. many vehicles would fail the test without the glass--if memory serves me right, the roof of a Chevy Suburban will actually crush under its own weight if the windshield is removed... it's either the Suburban or a similar vehicle, I can't remember.)

              I've actually heard Republicans say that lawsuits aren't necessary--the market will fix the problem because such a car maker will lose the trust of the public and go out of business.

              Ho-ho, that's rich. Ha-ha, it is to laugh. From that same link:

              "There is no correlation between roof strength and the likelihood of injury in a rollover crash," said Robert Lange, GM's executive director for vehicle structure and safety integration.

              I'm not sure what game Mr. Lange is trying to play with his words here, but I can assure the physics-challenged among you that this is an instance where common sense and the laws of physics coincide. You'll not find a NASCAR driver willing to race without a roll cage. The European branches of our Big 3 auto manufacturers all believe a sturdy roof saves lives and back that belief up with realistic safety tests. (Mercedes "Chrysler" Benz even sells a convertibles with a concealed rollover protection system that deploys to protect passenger skulls during a crash.) And, as an ad for the Cadillac SRX pointed out in March, "A stiff structure contributes to a secure cabin.... [And] provides a formidable defense for driver and passengers alike." (link)

              It's sick how greedy these people can be. My thesis advisor does expert-witnessing on this sort of stuff, so I've heard a lot about what it would take to make a safe roof. Stuff like: changing the roof supports from crimped-shut tubes to welded-shut tubes (adding a few ounces of weight to the vehicle and adding an additional cost to the manufacturer $50-$100); or even filling the supports with a few bucks worth of stiff foam.

              I'm &y and I approved this message.

              by abw on Sun Aug 01, 2004 at 09:02:14 PM PDT

              [ Parent ]

          •  What a load of troll droppings (4.00)
            I brew my own strong, hot coffee.  I drink it (often) black, having filled the mug up from the pot (often) before the pot's even finished brewing.

            I've spilled it on myself.  Silly me, trying to read the paper or surf the net while drinking coffee.

            I've never burned myself with it enough--even the full mug I spilled onto myself and a keyboard once--to require any attention to a burn.  Though I think I got a minor burn from that one, it didn't need tending.  All better now.

            To have to go in for skin grafts suggests that the coffee was at an absurdly high temperature.

            There are warnings on water heaters and special valves and such that parents can install to keep a kid from putting water that's 50 degrees cooler onto external skin.

            180 degrees?  Jeez, that's "HOT"?  And McDonald's thought that was a reasonable termperature for someone to put into their mouth?  Instant pain and burn.

            There's responsibility... and responsibility.  And the court made McDonald's take responsibility for their decision to keep their coffee at a ridiculously hot temperature.  They were gambling with the safety and well-being of real people in the interests of squeezing a little more profit margin out.

            And that's an attitude and action that deserved a very sharp, harsh rebuke.

            A liberal is a conservative who's been through treatment. -- Garrison Keillor

            by ogre on Sun Aug 01, 2004 at 07:32:55 PM PDT

            [ Parent ]

            •  I've got a scar on my foot (none)
              I just checked. It's still there after something like 25 years.

              When I was a kid, my mom was driving me and my siblings to Gramma's house for some holiday. Mom had brewed herself a Thermos of coffee for the drive. When we were setting out, she asked me to pour her a cup. As I was pouring, someone in another car did something erratic and my mom had to slam on the brakes. I spilled the thermos of coffee all over my foot and was burned rather badly.

              So just be careful. Even home brew can be powerful hot sometimes. (Nobody sued anybody in this incident, by the way.)

              I'm &y and I approved this message.

              by abw on Sun Aug 01, 2004 at 09:17:40 PM PDT

              [ Parent ]

          •  But (none)
            do you regularly and knowingly hand out coffee hot enough to create the need for skin grafts if someone else spills it on themselves?

            Would you drink hot coffee knowing you'd have to go the the hosipital for $200,000 of treatments if you spilled it?

            The woman in question was seated in the passenger seat of the car and the car was parked while she was opening the lid of her coffee. She had followed every common sense precaution most of us would follow in order to keep from spilling her coffee. It still happened. Sometimes we slip up even when we've done everything right.

            Are you saying we just shouldn't buy coffee because we might accidentally spill it on ourselves? It makes more sense to me that a restaurant shouldn't serve anything hot enough to seriously injure someone because they might accidentally spill it on themselves. Especially when they know it's that hot. Other restaurants don't serve coffee that hot.

            Heck, maybe we should start letting corporations sell DDT again. I mean, if anyone's dumb enough to use it, it's their fault if they get hurt by it, right? After that we can go after all the drugs the FDA has found to be hazardous. There's no reason to force drug companies to be responsible for anything the public does. As long as there's a warning label, buyer beware, right?

        •  Those burns were awful! (none)
          I saw pictures at the time and heard people laughing about this woman trying to get rich.

          Spilling coffee on yourself and getting burned is carelessness.

          Spilling coffee on yourself and getting third-degree burns with skin grafts and permanent scarring is product negligence.

          I'm tired of all of the arguing about everything but justice. I'm tired of all the win at any cost. I'm tired of attorneys in it for the big money (I don't care if they make it, I just don't want it to be their primary motivation.)

      •  Twenty degree difference (none)
        was this reduced after the lawsuit?

        Unless McDonalds has a client base monopoloy on stupid people, the temperature difference was the basis of the lawsuit.

        Power that legitimizes meanings by concealment of power relations, adds unique symbolic force to those power relations --Bourdieu (paraphrased)

        by dotpeople on Sun Aug 01, 2004 at 03:28:19 PM PDT

        [ Parent ]

      •  No common sense on behalf of McDonalds? (4.00)
        Nursing homes and hospitals are required to have strict controls on the temperature of tap water to prevent patients from burns from scalding water. It called being being prudent - preventing foreseable accidents before they happen.

        Let me serve you some 200 degree liquid in an insulated styrofoam cup and tell me if your first sip will burn or not depending on whether you possess common sense or not.

        •  Patients in hospitals or nusing homes (none)
          stand in a different relationship - a custodial one - than me walking into McDonalds and buying a cup of coffee.

          Full disclosure: I'm a lawyer.  I don't represent big corporations.  I've read my Posner (and my Richard Epstein, and my Cass Sunstein, and my Ronald Coase....)  And I think the McD's case was bullshit.

          •  I'm not a lawyer (more a criminal defendant) (none)
            Isn't the issue of neglicence central to the case, not the relationship of the parties?
            •  the relationship between the parties (none)
              determines in part the duty of care owed.  for example, let's say i am walking down the street.  i see you crossing it and a car speeding around the corner about to hit you. am i negligent if i don't yell out and warn you? no.  why? because you and i have no relationship that would create an obligation on my part (a duty of care) to you.
              •  Food (none)
                is dead.  Which means that it's somewhere in the process of rotting...

                It's perfectly reasonable to feed someone ground meat that's been properly stored for a period of time that doesn't exceed normal standards.

                Unless you know that it's not normal.  Perhaps you know that it was identified as tainted.

                Selling that burger would then be irresponsible and negligent and endangerment.

                Serving coffee at a temperature that's physically dangerous--and substantially above that used throughout the industry--is similarly irresponsible and negligent.

                Had the case revolved around burns caused by coffee at the same temperature as everyone else used, and if there weren't a long list of prior complaints, I suspect the plaintiff could have been older, frailer and gotten a cold shoulder from the court.

                McDonald's acted with willful disregard for the safety of those who would bear the risk of burns.

                20 degrees is hardly a minor difference, as anyone can tell.  60 degrees is a cool room.  40 degrees is the inside of a fridge.

                A liberal is a conservative who's been through treatment. -- Garrison Keillor

                by ogre on Sun Aug 01, 2004 at 07:53:54 PM PDT

                [ Parent ]

          •  Explain your analysis (none)
            Because I think the economic argument is fairly straightforward - McDonald's is the efficient target for modification.  Why do you think that's wrong?

            "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

            by Armando on Sun Aug 01, 2004 at 04:09:53 PM PDT

            [ Parent ]

            •  Its not as simple as saying (4.00)
              McDonalds sold a product that caused some people to get hurt, therefore its efficient to force them to take steps to minimize risk to the consumer.

              The law and economics approach asks does the value of the benefit (the value of the reduced risk) exceed the cost of the preventative measures needed to be taken in order to achieve the desired level of risk minimization. (And note, the cost of the risk minimization is not just the cost of physically undertaking the measure, but any opportunity costs involved in the changed business process) If the benefit value exceeds the risk minimization cost, then its economical efficient to force the tortfeasor to do so. (Assuming that they owed some level of duty of care in the first place)   This isn't even law and economics, this is Judge Learned Hand in U.S. v. Carroll Towing.

              On the other hand, if the cost of the risk minimization measures exceeds the value of the risk minimization benefit, then its not economically efficient to have the product manufacturer adopt the risk avoidance measures.  My Torts professor (who has both defended car companies against product liability claims AND sued gun manufacturers on product liability claims!) put it succinctly in layman's terms: We don't want to let car makers sell cars that randomly explode all the time; but we also don't want to force them to make completely foolproof cars encased in armor plating that only go 15 mph and cost $500,000.  (He also said don't ever let little Billy who got his eye poked out by a defective product take the stand.  At that point its not if your client is going to pay; its just a matter of how much.)

              Now, I am not necessarily arguing in favor of this as the only approach or even as an approach at all.  There are issues of equity, ethical behavior, etc. at play as well.  My point is just that its insufficient to just say that its economically efficient to force the McD's of the world to take preventative measures per se.  You need to look at the context of the risk and the risk avoidance measures in question, as well as the degree to which the consumer assumes the risk. (For example, do what degree to we the consumer assume the risk of super hot coffee in order to have access to cheap, cheap, quick coffee that won't get cold over a 30 minute commute to work?)

              •  What about (4.00)
                the fact that McDonalds coffee was 20 degrees hotter than standard.  The same old woman spilling the same amount of coffee from say, Duncan Donuts, doesn't receive the same injury.

                McDonalds took your cost/benefit analysis and decided they didn't care.  They had paid out settlements and chose to ignore the reason why they were having to pay.  They did nothing until the costs of doing nothing finally bit them in the ass.

                I can think of no more on point story of corporate America.  They will do nothing until doing nothing costs them.

                The United States of America: Walk the Talk

                by Velvet Revolution on Sun Aug 01, 2004 at 05:23:20 PM PDT

                [ Parent ]

              •  Good argument (none)
                But I disagree on one assumption - the costs to be considered, in my view, and I'll grant you it is not Posner's view, is that to society.  McDonald's profit, in and of itself, is not part of that calculus for me.

                The balancing should be between the cost to society of McDonalds' having to make modifications to its practices - that could include loss of tax revenue, loss of jobs, etc., vs. the costs imposed by McDonald's existing practices (i.e - the societal burden of increased medical cost, etc.)

                In that sense, my model of economic analysis is purely one of the economic good to society, not to the individual actors in the controversy.

                In this case, I  think it is fairly straight forward - McDonald's may suffer a very marginal profits loss, but not one which effects jobs or other benefits which we value as a society.  OTOH hand, 700 cases over a period of time - leading what to think that this level of harm would continue, imposing medical costs on the whole of society does have signifcant negative impact on society's economis condition.

                see I think this type of analysis has its place, my biggest beef with the Chicago School is the implicit assumption that there is societal value in the private economic effects imposed on the parties.  to show that I can find in the other direction - if there were only 7 cases, not 700, I would probably have a different view.

                "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                by Armando on Sun Aug 01, 2004 at 05:23:22 PM PDT

                [ Parent ]

                •  good point (none)
                  I think it comes down to how much one accepts the Posner argument and I admit I am sympatheic to the Chicago School view.  I guess for me I look at the 700 cases (over how many years were those 700 complaints spread) and then I ask myself how many cups does McD's serve a year.  1 million? 10 million? At 10 million (and that may even be rather low), McD's has a 0.007% reported accident rate due to coffee - even if people underreport by a factor of 100, that a 0.07% rate.  And of those, how many suffered 3d degree burns?  And 20 degrees above industry average doesn't sound that outrageous to me.  I don't sit there thinking "OH MY GOD - 20 WHOLE DEGREES MORE THAN AVERAGE!!!!"  What I ask myself is "How qualitatively more dangerous is that 20 degrees?" - which is of course one of those battle of the medical experts type questions.

                  All of which isn't to say I couldn't be persuaded to the other side.  Its more that my first instinct isn't to pull my hair out and scream "That evil big corporation! How dare they!" - although my sense is that isn't your first instinct either. ;)

                  Now WalMart, there is a company that deserves to get its ass sued off by its workers (if even half the asserted allegations are true.)

                  Thanks for the chat.  Always a pleasure to discuss these things with reasonable folks.

                  •  Me reasonable? (none)
                    I had to look over my shoulder to see if you were talking to someone else.  I can be pretty doctrinnaire - but certain issues really need thought.  To me, this is one of them.

                    "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                    by Armando on Sun Aug 01, 2004 at 05:39:58 PM PDT

                    [ Parent ]

                    •  yeah well, i try to treat fellow legal eagles (none)
                      with some extra respect, to the degree that i can remember to. ;) senior partner at my old firm was an old coot and was real big on that whole "fraternity of fellow lawyers" and "restoring civility to the practice of law."  Somedays it seems cute in a quaint sort of way; other days,  I think he had a point.
                      •  I'm for that (none)
                        Though I think I honor it more in the breach.

                        "We're not criticizing Bush for going after terrorists, we're criticizing him for NOT going after terrorists." - Wes Clark (hopefully in the future J. Kerry)

                        by Armando on Sun Aug 01, 2004 at 06:04:30 PM PDT

                        [ Parent ]

                  •  and then there's the difference... (none)
                    ...in different people's sensitivity to heat, and on what part of the body. My skin on my hands, after a liftime of consrtuction and outdoor work is like hide and when the waitress says "hot plate!", I take it from her hands and it's rarely hot enough to pain. Not everyone has that going for them. OTOH, the skin on an 81 yr old's groin area is likely to be exremely sensitive, as is mine.  So there's no absolute standard here, either.

                    don't always believe what you think

                    by claude on Sun Aug 01, 2004 at 06:10:37 PM PDT

                    [ Parent ]

          •  It's all about values.... (4.00)
            McDonalds demonstrated in this situation that its primary values was to minimize costs (to increase its profits), rather than to produce the best product it could.  It did so KNOWING that its product was "defective", i.e., that it caused burns to a number of people.

            This is really no different than Ford calculating what they would lose by being sued for the deaths of a number of Pinto drivers killed by exploding gas tanks, and deciding it was cheaper to handle the lawsuits than to fix the problem.

            THAT is what is wrong with corporate decision making, it is what is wrong with our entire economic system.  We have forgotten what the purpose of economic activity is, which is to satisfy human needs and wants as efficiently as possible, and made the system a god and its parameters (profit, growth) its high priests.  

            Unfortunately, sooner or later, the system is going to grind to a halt, because of pollution, energy prices, and rising dicontent among an increasingly dispossessed majority of the population.  Unless we start reining in the system, bringing it back under social control again, so that it serves the good of many instead of enriching the few.

            Peace in a world free of Religion, Peace in a world where everyone gets Heaven... -- Toni Halliday

            by Wintermute on Sun Aug 01, 2004 at 04:14:36 PM PDT

            [ Parent ]

            •  It May Have Changed Policy in Several Areas (none)
              McDonald's is a big, inviting target with real competition (unlike, say, Walmart).  So, if pressure is put on them effectively, they would have an incentive to change behavior.  But still, I have to wonder if there hasn't been a change for the better with McDonald's since the mid-90's (when this case was heard).  Since then McDonalds worked with some enviro group (Greenpeace?) to make their packaging more environmentally friendly.  Then, in the last year or two, even before the documentary came out (can't remember the title), they had started trying to bring down the sizes and caloric richness of their food.  

              Sometimes, lost lawsuits provoke a fundamental change in a corporation's outlook in risk, liability and corporate responsibility.  McDonald's may have been a case in point.

              •  Remember one thing... (none)
                ...that lawsuit happened when McDonald's was under fire for a lot of different things. From what I understand, there's been a lot of positive changes since then.

                I'm no legal eagle, but what I am is a former McDonald's employee, and I worked there before that lawsuit. (mid-to-late Eighties).

                The McDonald's I knew was absolutely ruthless about keeping costs down. The coffee was kept excessively hot, and every employee knew it. (One of those '700 people paid off to keep quiet' was a co-worker who got second-degree burns on her arm.) And we all knew why, too--so it would keep longer.

                This was only part of it. Some of you might remember how pressured McDonalds was about using beef fat in the french fry oil. It was cheaper. Some of  you might also remember that, back in those days, McDonalds french fries were very, very salty. The burgers were saltier, too. Why? Because salt makes you thirsty, and the highest profit margin item in a McDonalds was the Coke. It took a major bitch from the Heart Association about the sodium content in McD's food to change that.  

                This was stuff employees knew all about. We'd get reprimanded if the fries weren't salty enough. And this is just the tip of the iceberg.

                Now, from an outsider's perspective, a lot has changed. They've found other ways to reduce costs (I know their current production methods allow for far fewer employees than the old methods I knew.) I knew the McDonald's I worked for cared about one thing--profit. They don't seem to be as bad now. I wonder how much this lawsuit played into that.

                "If there's a child on the south side of Chicago who can't read, that matters to me, even if it's not my child."--Barack Obama

                by ChurchofBruce on Sun Aug 01, 2004 at 11:59:37 PM PDT

                [ Parent ]

          •  Stella was 81 (4.00)
            Let's put this in perspective. The issue originally, which Stella wished to resolve, was who was going to pay for her medical costs. Over $300,000 worth. McDonald's stiffed her. They stiffed her because their policy was not to agree to liability in any case, otherwise they could potentially admit responsibility for the hundreds of people that were getting burned by their drinks. In real life the question is whether the costs should be borne by the taxpayer (Stella is 81 and covered by govmint' insurance), or by the multinational corporation which knowingly and stupidly served a superhot drink to an 81 year old lady.

            You want to keep government costs down, as I do; make corporations accountable for their stupidity, and don't close off court access to those they harm. The opposite, dumping responsibility on our 81 year old elders, such as Stella, or not letting them in the courthouse door through "tort reform", only means you and I will pay for it.

            The best intentions in the world, placed on a shelf, are worthless.

            by chuco35 on Sun Aug 01, 2004 at 04:34:22 PM PDT

            [ Parent ]

      •  Great Hunter: How Foolish You Appear (4.00)
        When pontificating with friends over a beer you might come across as a clever person, but in the harsh light of daily Kos you really do look stupid.

        First, let's say that you're right that the number of coffee spills doesn't go down. If the temperature of the spilled coffee is 20 degrees cooler, then the number of severe burns WILL go down. The number of emergency room hospital visits will go down. The amount of money needlessly thrown into our medical system (and paid for by the rest of us in insurance premiums and taxes) will go down.

        Second, spilling coffee has next to nothing to do with stupidity, if by that one means what one usually means: roughly, intellectual ability, reasoning capacity, and/or base of factual knowledge. Momentary carelessness afflicts us all.

        Third, don't worry about diminishing a sense of personal responsibility. I used to get worked up about this as well, and there are cases where the afflicted party refuses to take responsibility that it should, but punitive lawsuits can be justified in terms of the public good without diminishing personal accountability...as others have done in this thread.

        Don't understand NY politics? Try The Nor'Easter

        by jd in nyc on Sun Aug 01, 2004 at 03:52:42 PM PDT

        [ Parent ]

      •  Hunting Man (4.00)
        The coffee cup was not marked hot -- it distracted from McDonald's printed slogan. They didn't start doing that until after the suit. They also started using stiff cups after the suit, instead of the cheap thin ones which invite spills. And they also started using sleeves on hot cups after the suit, to prevent accidents. McDonald's also reduced the temperature at which they served coffee, but not until after the lawsuit. This stuff is all common now throughout the "hot drink" market, probably because of the McDonald's case since it didn't happen until after the lawsuit.

        Truth is, all that stuff only became ubiquitous because of the efforts of trial lawyers like Edwards. who took on these fights at their expense.

        Oh, btw, the trial lawyers who handled the hot coffee case probably spent over $100,000 in out of pocket expenses in taking it to trial, with no guarantee of reimbursment, unless they prevailed. This case rebuts the "greedy lawyers are only too willing to take on frivolous lawsuits" mime. What rational trial lawyer would be willing to front these type of costs, not to mention "fee-less" time, on frivolous cases where there is no likelihood of a pay-off? (As opposed to a case that may appear ridiculous, but indeed has merit -- like this one.)

        The best intentions in the world, placed on a shelf, are worthless.

        by chuco35 on Sun Aug 01, 2004 at 04:07:28 PM PDT

        [ Parent ]

      •  KRAMER! (none)
        should be: Have the number of stupid people gone down.

        Not if they keep airing that Seinfeld episode.

        Hmmmmm... during the convention last week, they aired that episode. In fact, I am pretty sure it was the day of Edwards' speech. And it was on a FOX affiliate!

        CRAP ON A CRUTCH!

      •  This Post may be HOT - handle with caution (4.00)
        Remember the cup is marked "HOT".

        They didn't start marking "hot" until after the suit.  One of the results (a successful one) of litigation is to change behavior so that future injuries will be less likely.

        Any man who can render himself unconscious with a pretzel isn't smart enough to rule the free world...

        by PBJ Diddy on Sun Aug 01, 2004 at 04:30:11 PM PDT

        [ Parent ]

      •  Yes, Indeed (none)
        I also think one should have "personnel responsibility."

        If, that is, one is in charge of personnel.

        Did you even bother to read the story? What part of "20 degrees hotter" and "over 700 cases of second and third degree burns" do you not understand?

        Perhaps the kind of mind that cannot distinguish between "personal responsibility" and "personnel responsibility" ought not be expected to have basic reading comprehension skills.

        Maryscott O'Connor -- Rage, rage, against the lying of the Right.

        by Maryscott OConnor on Sun Aug 01, 2004 at 04:33:29 PM PDT

        [ Parent ]

      •  Oh, I see (4.00)
        There are no accidents.  Only stupidity.  I get it.

        Perhaps you should put your money where your mouth is.  The next time you're injured, don't call an ambulance.  It will be your fault, after all, and why should we pay for your stupidity?  Take a little responsibility, for goodness sakes.

        Like shooting fish in a barrell.

        Visit the Diary of the Lying Socialist Weasels, for commentary from the Original Progressive Web Warriors!

        by Jonathan on Sun Aug 01, 2004 at 04:38:16 PM PDT

        [ Parent ]

    •  reduced temperature (4.00)
      I'm really sorry I can't remember the source, but I was reading about this just the last week or so, and the story was that MacDonald's reduced the temperature of their coffee after they lost this lawsuit.
    •  Cup design (4.00)
      "Hot beverages to go are sold now with stronger cups and often sleeves to make the cups easier to handle than in 1994. Most cars now include beverage holders."

      This is from a recent article in The American Lawyer about Reed Morgan's latest hot-coffee lawsuit against McDonald's.

      By the way, Morgan says "I'm not interested in handling them unless there's third-degree burns, because of the whole penumbra effect that they're allegedly frivolous." The current case is only his fourth hot-coffee case; his bread-and-butter practice is representing boat and railroad workers who were injured on the job.

      In politics, sometimes the jackasses are on your side.

      by Dump Terry McAuliffe on Sun Aug 01, 2004 at 04:31:46 PM PDT

      [ Parent ]

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