Experts in Famous Case: “Hot Coffee”

By Noah Bolmer

In 1992, 79-year-old Stella Liebeck purchased a coffee from the drive-through window of a McDonald’s in Albuquerque, New Mexico. She was the passenger of a 1989 Ford Probe which has no cupholders, so her grandson (the driver) parked for her to add milk and sugar. She placed the coffee between her knees and spilt it as she removed the lid, resulting in third-degree burns over six percent of her body, and lesser burns over sixteen percent.

With permanent disfigurement and partial disability, Ms. Liebeck attempted to settle with McDonald’s for actual medical expenses amounting to around $20,000, but McDonald’s scoffed, offering merely $800 for the incident. After retaining counsel, Ms. Liebeck would file a gross negligence suit [1] in the US District Court of New Mexico. The jury would eventually punish McDonald’s for what they perceived as a callous and cavalier failure to protect customers, despite having settled numerous coffee burn cases in the past.

The Trial

The plaintiff’s team offered six expert witnesses; the defense only three. While most of the transcript has been lost or destroyed, contemporaneous reporting, and remaining deposition and trial fragments suffice to piece together the importance of expert witnesses in this case.

Issue One: Temperature and Time

In order to prevail, Ms. Liebeck’s team would need to show that burns are a function of not only temperature but contact time. The hotter the temperature, the faster the burn. Witnesses for the defense were continuously outflanked by the plaintiff’s expert counterparts and their own previous writings, as was the case with Christopher Appleton, McDonald’s Manager of Quality Assurance. He had admitted to knowing that their coffee was extremely hot and even commissioned a law student to test other surrounding businesses’ coffee offerings which verified that McDonald’s coffee was consistently at least 20 degrees hotter than anyone else’s. What he did not do is consult burn experts to evaluate whether there was an inherent danger.

In direct, burn expert for the plaintiff Dr. Charles Baxter established that the temperature at which coffee was served is inappropriate for drinking:

Q. So, with that training and our clinical experience, do you have an opinion as to whether or not a seller of coffee that sells it to humans in automobiles, if they want to create a zone of safety, a margin of safety to avoid third degree or second degree burns to people that may spill coffee as did Mrs. Liebeck or have it spilled on them, are creating an acceptable or unacceptable risk of harm when they sell it at 180 to 190?

A. Yes, I think it is excessive because you can't drink it at that temperature. Most people can't drink it at that temperature. I'm sure there are some who can.

Q. If a person was to try to drink a liquid at 180, 190 degrees by taking a swallow of it, what would you expect to occur?

A. You might even get a first degree burn.

Continuing, they established that a marginally lower temperature would greatly increase the time it would take to get third-degree burns:

Q. [I]f we look back at the issue of what temperature's safe, what temperature at which she would not have received a third degree burn, let me ask you if you have a temperature in mind that we know, if she were served coffee at that temperature, she'd be safe from third degree burns as would anybody else?

A. Well, just markedly reduced.

A. In exact numbers, if I may give these to you, it would take 20 seconds exposure at that temperature to get a second degree burn.

Q. Yes, sir.

A. And it would take 60 seconds to get a third degree burn, which would let almost anybody get out of the situation.

Q. So, 60 seconds at 155?

A. Yes.

This was in direct contrast to the affidavit submitted by defense medical expert Dr. Turner Osler, who stated that liquid as low as 130 degrees would have caused the same burns, meaning that McDonald’s extremely high coffee temperatures were not a factor. Dr. Baxter easily parried:

Q. Dr. Osler goes on to state at paragraph 17 of the affidavit, “Based on my review of the records, my education and training and my experience in treating numerous and all manner of burn injuries in the course of my practice, it is my opinion to a reasonable degree of medical probability, that Ms. Liebeck would have suffered the same level and extent of burn injury had the coffee in question been at a temperature of as low as 130 degrees Fahrenheit.

Q. Do you agree with that statement, Doctor?

A. No. I completely disagree with that statement.

Q. And can you tell us why?

A. Well, what he's saying is that a spilled cup of coffee onto her lap at 180 degrees would probably produce the same burn as if the coffee had been 130 degrees, which is absolutely not true. And the reason that's not true is that studies that have been demonstrated on burn and scald burns, it's demonstrated fairly scientifically that temperature of the liquid is probably one of the most important factors in a scald injury, and that the duration of contact is extremely important.

Duration was the key, and plaintiff’s experts went on to present numerous detailed studies showing the exact relationship between burns and contact time. The defense countered that the victim could have removed her clothing to minimize burns, but again, the plaintiff responded that she would have needed to do so within about a second, given the temperature. This would prove fatal to the defense’s case.

Issue Two: Warnings

Having shown that the coffee’s temperature posed a significant and possibly unreasonable danger, warnings as a mitigating factor became the next major issue. Plaintiff’s experts Dr. Kenneth Diller and Dr. Lila Laux were up. Dr. Diller, a thermodynamics expert, noted that while boiling or near-boiling water is used to prepare coffee, the optimal temperature to serve coffee is between 125-136 degrees. In the days of Styrofoam cups which insulate much more effectively, drinking coffee at those temperatures could lead to serious burns. Dr. Laux, a warnings expert, noted that despite a long history of coffee burn victims, McDonald’s had not made any changes, or instituted effective warning labels, which could disproportionately impact the elderly:

A. Well, McDonald's clearly has had evidence for a long time, since -- at least since 1983, since I saw two long lists of people who had been burned in McDonald's Restaurants from coffee and hot chocolate and hot water too, evidently from tea, overwhelmingly from coffee. McDonald's has known since 1983, since these records were kept, that people were receiving severe burns, not just burns like you might expect when you stick your hand in the hot water under a faucet, severe burns, some of which are third degree burns, which were requiring significant medical attention. And Mr. Appleton, I think, in his deposition, as I recall, said that he knew that people were being burned and that he knew the coffee was hot enough to cause such burns.

Q. And, with regard to the case at hand, the issues at hand, do you see an issue here concerning warning persons in excess of, say age 65, of the risk of serious burns from drinking excessively hot coffee?

A. Well, people 65 and older, and, as they get progressively older, this increases -- are at increased risk for this. [. . .] The vision is not so good. Grip strength is not so good. The chance that they might drop a cup of hot coffee -- their hand flexibility is not so good, so they may have difficulty getting the top on and off. The perception of temperature is not very good and, the older you get, the less able you are to perceive how hot something is. The longer it takes and the less accurate you are at making those kinds of judgments. That's one of the reasons why, when we design facilities for older people, we make sure the water temperature in the water heaters is turned way down. They can't accurately detect the difference between something scalding hot and something that's not dangerously hot.

Defense’s human factors expert Dr. Robert Knaff stated that because McDonald’s sold over a billion cups of coffee annually, the large total number of burn victims and settlements were not statistically significant, and did not warrant changes to temperature or warning labels. After the trial, jurors who were interviewed found this particular line of defense extremely troubling. Juror Betty Farnham stated: “There was a person behind every number and I don't think the corporation was attaching enough importance to that”. Juror Jack Elliott stated that McDonald’s showed a “callous disregard for the safety of people”.

Issue Three: Economic Damages

The writing was on the wall for McDonald’s and the only remaining issue was economic damages from the incident. During her deposition, economic damages expert Melissa Patterson pushed back with a bit of snark, staying in her lane and avoiding legal arguments despite defense’s attempts:

Q. If somebody makes a lot of money, that is probably because they are working 20 hours a day, so they may not be having that much pleasure in their life.

A. Well, yes. A few trial attorneys are working 60 hours a week. You don't have as much time.

Q. Do you, as an economist, equate loss of value of enjoyment of life with pain and suffering? In other words, is there some duplication there when you are talking about two different calculations of damages?

A. You know, I don't know. Again, you all are just getting into a bunch of legal arguments. I can't see how you can argue it both ways.

Q. I want to hear your understanding of the arguments both ways.

A. I am not going to make any legal arguments because I am just a lowly, little, old economist over here, but I can certainly see just from a common sense standpoint that you may lose some pleasure of life just because you can't participate in some activity.

There may also be pain associated with that. Are you counting the same thing? I don't know. Go talk to the judge. I don't know. I can see arguments both ways.

Q. You are not trying to instruct a jury as to whether this is or is not duplicative of pain and suffering damages?

A. I think Judge Scott would be real upset with me.

McDonald’s would proceed to go around in circles trying to impugn her economic model, question whether economists can place values on lives, and whether Ms. Patterson had used the most accurate model for a woman at Ms. Liebeck’s advanced age. None of this would be compelling to the jury.

The Verdict

The jury found that Ms. Liebeck was 20% liable, reducing a $200,000 compensatory award to $160,000. Additionally, they awarded her $2.7 million dollars in punitive damages (roughly equivalent to two days-worth of coffee sales), although that would later be overturned on appeal and reduced, then followed by a subsequent private post-verdict settlement. Mirroring the jurors’ interview quotes, the judge who reduced the initial punitive award stated that McDonald’s conduct was “reckless, callous, and willful”, even while finding the award out of line.

Aftermath

The knee-jerk reaction to the case for years was that a clumsy person sued McDonald’s for millions of dollars and won, despite facts to the contrary. If McDonald’s had simply paid the initial $20,000 this case would have been another under-the-radar burn settlement, but instead, it became infamous. The experts for Ms. Liebeck’s trial team were very well-prepared and credible, leading not only to a massive verdict, but a profound, continuing impact on tort reform, which has a measurable positive impact on public safety.

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!

[1] Liebeck v. McDonald's Restaurants, P.T.S., Inc. and McDonald's International, Inc., 1994 Extra LEXIS 23 (Bernalillo County, N.M. Dist. Ct. 1994)