858.792.5988

Serving San Diego for over 35 Years

Clients, Colleagues, and Friends,

I retired on Dec. 31, 2019, and officially closed my office, after 42 years of practicing law. I thank you all for your confidence in me and your friendship over the years. My colleague David Dufek who has shared the suite with me for the past two years is taking over my practice and will have all client files. Not only will David be taking over the practice, he remains in the suite and is taking over my fax and phone lines. You are free to leave your files with David or pick them up. David's practice like mine includes will, trusts, and probate, as well as personal injury work. He also does landlord - tenant work and debtor - creditor matters including bankruptcy.

I wish you all the best.

Alex

The truth about that hot cup of coffee at McDonald’s

I’m sure most of you heard about the 81 year old woman who spilled hot coffee on herself at McDonald’s. What the late night comics failed to tell you is: “If a jury decides  a victim is entitled to a large damage award, it’s almost always due to the greed or callous indifference of the defendants, not the conduct of the victim.

Mr. S. Reed Morgan was the personal injury attorney for the plaintiff in that famous case. I had an opportunity to speak to him and review an article he wrote in Texas Lawyers Magazine. With Mr. Morgan’s kind permission to reprint, this is what was proved at the trial and Mr. Morgan’s thoughts.

  1. McDonald’s Corporation sells its coffee at 180-190 degrees Fahrenheit by corporate specifications.
  2. McDonald’s coffee, if spilled, causes full thickness burns (third degree to the muscle/fatty tissue layer) in two to seven seconds.
  3. Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost hundreds of thousands of dollars and result in permanent disfigurement, extreme pain, and disability to the victim for many months, years and in some cases, life.
  4. McDonald’s Corporation had known about this unacceptable risk for more than 10 years and it was brought to their attention through other suits (more than 700 reported claims from 1982- 1992), repeatedly to no avail. McDonald’s produced a witness who said this number of burned people was statistically “trivial.”
  5. Witnesses for McDonald’s admitted in court that the consumers are unaware of this risk of serious burns and that McDonald’s Corporation is and has been aware of this risk.
  6. McDonald’s Corporation testified through its witnesses, that it did not intend to turn down the heat.
  7. McDonald’s Corporation admitted that it did not warn of the nature and extent of this risk of harm and could offer no explanation as to why it did not.
  8. McDonald’s Corporation admitted its coffee “is not fit for consumption” when sold because it will cause severe scalds if spilled or drunk.
  9. McDonald’s Corporation coffee has burned more than 700 people over the past 10 years, many with severe burns to the genital area, perineum, inner thighs, and buttocks.
  10. Mrs. Liebeck’s treating physician testified this was one of the worst scald burns he had ever seen and that this risk of harm was unacceptable.
  11. The chairman of the Department of Mechanical Engineering and Bio-Mechanical Engineering at the University of Texas testified this risk of harm is unacceptable, as did the most widely publicized burn doctor in the United States, who was the editor-in-chief of the “Burn and Rehabilitation Journal,” the most widely recognized burn journal in the world.
  12. McDonald’s Corporation at that time generated revenues in excess of $1.3 million daily from the sale of the coffee, selling 1 billion cups of coffee each year.
  13. McDonald’s Corporation has burned not only men and women, but children and infants with their scalding hot coffee, in some instances due to inadvertent spillage by their own employees.
  14. At least one individual had scalding hot coffee dropped in her lap through the service window, resulting in third-degree burns to her inner thighs and other sensitive areas of the body, resulting in disability for years.

We had to teach McDonald’s that for every degree above 140 degrees Fahrenheit, our skin burns twice as fast. At 180 degrees Fahrenheit, there is no escape from these third degree burns. The product is, by definition, defective or unreasonably dangerous.

This is the applicable law. They broke the law. Why had they not studied this risk? They have laboratories and a university devoted to the study of selling food and drinks. They had a legal duty to sell safe products, not products with a hidden risk.

The jury applied the law of punitive damages to deter McDonald’s and other similar corporations from exposing consumers to this risk by imposing a penalty of two days’ coffee sales or 2.7 million, for willfully ignoring the safety of children, women and men that feed the McDonald’s money tree.

So, the issue is why should we tolerate this kind of irresponsibility? What’s wrong with penalizing corporate irresponsibility that burns and may kill our consumers?

Is this an individual who didn’t take responsibility or a corporation that didn’t take responsibility? The jury found 20 per cent against Mrs. Liebeck and 80 per cent against McDonald’s.

The risk of serious burns above 130 degrees Fahrenheit has been well documented by the Shriner’s Burn Center, which has published warnings to the franchise food industry that its members are unnecessarily causing serious scald burns. The industry did not react.

McDonald’s admitted that it never in all these years consulted a single burn doctor or thermo-dynamicist. Our firm did, and we presented this information to the jury in Albuquerque, which in turn did what is necessary to remedy the problem.

Interestingly, the news media, the day after the verdict, documented that coffee at the McDonald’s in Albuquerque is now sold at 158 degrees.

Mission accomplished. This will cause third-degree burns in about 60 seconds, rather that in two to seven seconds. The margin of safety has been increased as a direct consequence of this verdict.