Jan. 18, 2021

Episode 007: The McDonald's Hot Coffee Case


Caution! Contents of this episode are HOT.

Sarah starts off with some McDonald’s fast-food history, including how they integrated Ford’s Model-T assembly line to create their quick service and drive-thru, and the key role milkshakes played in their success. She then highlights some international menu items that have been tailored to satisfy consumer preferences around the world.

Becca covers an instance of tort law that had Ronald Reagan in a tizzy: the case of Charles Bigbee v. Pacific Telephone & Telegraph Co. She then discusses how this case relates to the most infamous personal injury lawsuit: the McDonald’s Hot Coffee Case. She breaks down the details of the case, including testimony, media coverage, and what actually happened to the plaintiff, Stella Liebeck (did she really make 3 million dollars?). Becca then spills the tea on an investigation she conducted and the optimal drinking temperature of your latte.

Becca & Sarah close the episode by discussing the importance of remaining unbiased and in sticking together when it comes to consumer safety. Sarah leaves us with a teaser about avocados.

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Transcript

B: As I mentioned, I will be covering the Liebeck v. McDonald’s case, which is one of the most talked about and misunderstood cases in recent history. It has been cited in the news, it set a legal precedent for product liability cases, and has been used as a pop culture reference for almost 2 decades now. 

S: I’m going to start off by telling you all about McDonald’s and how a little hotdog stand in California became an international institution of hamburgers, fries, and efficiency. 


History of McDonald’s

McDonald’s is the largest fast food chain in the world by revenue (remember Subway was actually the largest by locations). McDonald’s serves over 69 million customers every single day in nearly 120 countries from 37,855 locations as of 2018. As of 2015, McDonald’s was the world’s fourth largest employer with over 1.9 million employees, narrowly beaten by WalMart (2.1 million). So McDonald’s is an absolutely massive company, one of the most recognizable and profitable brands of all time, and it’s been around for over 60 years. 


I got most of this information from a beautifully written article in Smithsonian Magazine by Lisa Napoli. Let’s go all the way back to 1937 in Monrovia, California, where brothers Maurice (Mac) and Dick McDonald are feeling a bit down on their luck. They had moved to LA to pursue a life of acting, but found themselves unable to land the big roles that they dreamed of, and instead they worked hauling sets for Columbia Movie Studios and eventually scraped together enough cash to buy a small theatre and start screening films themselves. They quickly realized that the guy with the root beer stand was making more money than they were, and they sold the theatre and bought a little hot dog stand near a flying field, where spectators would come and watch planes fly, and they called it the AirDome and sold orange drink and hot dogs. 


Now, Mac and Dick were successful at the hotdog stand, but they felt like there was something more they could do, and around this time cars were becoming a household commodity, so Mac and Dick wanted to start a restaurant that appealed to drivers, where people could pop in for a bite to eat while they were out for a drive. So they ended up getting a place in downtown San Bernardino, California and they called it McDonald’s BBQ. Now, most quick-service restaurants of the time (this is the 1940s) were called carhops, and cars would enter the parking lots and attractive young women would take your order and bring your food right out to your car. 


Business was going really well for McDonald’s BBQ, but Mac and Dick knew that they could achieve something greater and they especially wanted to move away from the carhop situation because they felt like it was a waste of time and labour resources, so they made the bold decision to shut down McDonald’s BBQ - just for a bit - while they figured out what direction they wanted to take. Drawing inspiration from Ford’s Model-T assembly line business model, Mac and Dick wanted to become as efficient as possible. They decided to slash the menu from 25 to 9 items, and completely got rid of the pricey BBQ options. They got one of their inventive friends to make them a machine that squirted ketchup and mustard and a press that allowed them to make burgers more quickly, and notably, they purchased 8 state of the art milkshake mixers. A major part of the brother’s new model was that customers were not allowed to ask for substitutions, so they were totally remodelling the way they conducted business and making the process as efficient as possible. They created an assembly line of workers that could get the food order to the customer in 20 seconds or less, and they also got rid of the carhop-style waitresses, so customers actually had to walk inside and place their food order. Apparently the brothers thought that female employees were a distraction from efficiency *eye roll*


All of these cuts to labour and improvements in efficiency meant that the brothers were able to drastically reduce the price of their food! In 1948, it was $0.15 for a burger, $0.10 for fries, and $0.20 for a milkshake. 


FACT CHECK: The Blizzard was invented in 1940 in Joliet, Illinois in the United States by Samuel J. Temperato, which really makes the Canadian invention of the McFlurry nearly 50 years later much less impressive. 


FACT CHECK: Okay,  0.45 USD in 1948 is equivalent to $5.07 USD today, which is $6.46 CDN. Now, today, in Ontario, Canada, a quarter pounder with cheese, small fries, and a small milkshake would cost you $12.07 plus tax, which means relative to today’s prices, this was actually a pretty dang good deal. 


FACT CHECK: it was michael keaton. 


When Mac & Dick reopened, they dropped the BBQ from the name and officially became McDonald’s and at first… the people were NOT having it. They didn’t love the changes that the brothers had made - they wanted to be able to customize their food choices and they certainly didn’t want to have to get out of their cars and walk inside and place their own orders. But within four months, hungry patrons crowded the counters and the McDonald brothers found great success once again, and soon the brothers were rolling around town in brand new cadillacs. Apparently, the burgers were just fine, not ground-breakingly delicious, but they were quick and easy. The fries, on the other hand, were exceptional. Mac had put his heart and soul and chemistry knowledge on the line and he found the perfect french fry recipe and which included sun-drying the russet potatoes in the desert heat. 


With their new-found success and efficient assembly lines, Dick and Mac slowly started franchising the business, but it didn’t really take off when Ray Kroc entered the picture in 1954. Ray Kroc was a milkshake mixer salesman, and he had heard that there was this little restaurant called McDonald’s in California that was using 8 of his milkshake mixers and he went to go check it out. At this point, the McDonald’s brothers had 6 franchise locations. Right away, Kroc believes in McDonald’s and he wants to take it nationwide, so they work out a deal where the brothers get a small amount of the profits and Kroc goes off to bring McDonald’s to the people. 


Kroc opened his first restaurant in Chicago and it was him and his designer that chose the recognizable yellow, white, red, brown colour scheme. McDonald’s grew to 102 locations by 1959. Growth from here on out was fairly steady, and Ray Kroc officially bought out the McDonald brothers completely in 1961 for 2.1 million dollars, which is the equivalent of $21.6 million dollars today. During the 1960’s, McDonald’s created their trademark golden arches, they birthed Ronald Mcdonald, the filet o’fish and the big mac and they also opened their first international McDonald’s restaurant in Richmond, British Columbia. 


It took McDonald’s 33 years to open it’s first 10,000 locations, and only 8 years after that to open it’s next 10000. By 1997, McDonald’s was opening 5 new restaurants a day, and for the most part, people were really... Lovin’ it. 



International Menu Items


But while McDonald’s has enjoyed immense success over the years, they have also had their fair share of challenges. In 1990, public pressure led by a man named Phil Sokolof, a multi-millionaire businessman and a cholesterol crusader, forced McDonald’s to change their long-perfected and beloved french fry recipe and eliminate the saturated-fat laden beef tallow from their formula. Sokolof had experienced a heart attack himself and after deciding his diet was at fault, he spent over $3 million running full-page newspaper advertisements claiming that McDonald's was poisoning America with high-cholesterol menus... and his campaign was ultimately successful. For the full story, you have to listen to Malcolm Gladwell’s podcast Revisionist History, one of his early episodes is called “McDonald’s Broke My Heart” where Gladwell goes on a quest to find the incredible McDonald’s french fries that he remembers from his childhood.


Over the years, McDonald’s has constantly had to battle it’s negative public image as a place for unhealthy, highly processed food, and throughout the years there have been many individuals that have actually sued McDonald’s for making them obese, and some have resulted in settlements, but far more have been dismissed on the grounds that consuming McDonald’s to excess is a matter of individual responsibility.


As they expanded around the world, they have added plenty of options to meet the needs of different populations! There are kosher McDonald’s in Jerusalem and Halal McDonald’s in Arab countries, and the menus are adapted to whatever local consumers want. Some of my favourite international menu options included the Chicken Maharaja Mac in India, which a rif on the classic Big Mac has two chicken patties and a spicy habanero sauce, the Filet-O-Shrimp in Japan, the Ham and egg twisty pasta breakfast from Hong Kong, the mashed potato burger (also from China), and then two sundae flavours I thought you’d be interested in: the lipton iced tea sundae from Germany and the apricot sundae from turkey! 


Now, McFlurry’s were actually invented by a Canadian franchisee named Ron McLennon in New Brunswick in 1997 and they became a huge hit around the world after their launch. Of course, we know the classic Canadian flavours like oreo, m&m, and skor, but there are some unique-to-me flavours from around the world - Ovaltine mcflurry in Brazil (malted milk flavouring powder) and a bubblegum marshmallow mcflurry in Australia called the Bubblegum Squash, a Himalayan Tea McFlurry in Singapore and Stroopwafel McFlurry in the Netherlands. AND fun fact, there is a McSki-Thru on a ski hill in Sweden! 


FACT CHECK: Hawaiian pizza was in fact created in Chatham, Ontario, Canada by a man named Sam Panopoulos. Him and his 2 brothers emigrated to Canada from Greece in 1954. They owned several restaurants in Chatham and began adding canned pineapple to their pizza in 1962. 

_________________________

B: Before I started my research, my perception of this case was a bit different than it is now. The details to this story are so fascinating and upsetting, and it is a perfect example of how the food industry and media twisted something to make it into clickbait that favoured large corporations over victims.


The main sources I used include a mini Retro Report documentary by the New York Times, some legal proceeding documents and various news reports, all of which can be found in our shownotes.



WHAT IS TORT LAW? 


To start, you really can’t tell this story without first talking about another case, which is Bigbee v. Pacific Telephone & Telegraph Co. This one has nothing to do with food or drink, but is one of the first large lawsuits of its kind and definitely deserves a mention. So just after midnight on November 2nd, 1974 a man by the name of Charles Bigbee was making a phone call from a phone booth on the side of a street in Inglewood, California. All of a sudden he sees a car coming directly for him. He tries to get out of the phone booth, but the door is jammed, trapping him inside. Ultimately he was run over by the car, which he later found out was driven by a drunk driver (Bird, n.d.).


Bigbee suffered many serious injuries, including having to have one of his injured leg amputated. He previously worked as a custodian for the city of Los Angeles, but his insurance policy did not cover all the medical expenses, leaving him with debt and the inability to work while recovering. He was able to return to work eventually, but it was at a limited part-time capacity. 


Bigbee decided to take legal action against the drunk driver, the establishments that overserved her alcohol that night, as well as the companies responsible for the location, installation, design and maintenance of the phone booth that he was stuck in. Throughout the investigation, Bigbee’s lawyer discovered that the same phone booth had to be replaced just two years before his accident because it was hit and destroyed by another driver - meaning it was placed in a high risk location, but with no guard rail or warning added to warn users of the danger. It had also been installed with a faulty door - so it was a recipe for disaster. Bigbee ended up with a $25,000 settlement - half of which was paid out by the drunk driver (D'Amico & Pettinicchi, LLC, 2016).


What happened after this settlement is the most disturbing, but it is what connects this story to the Liebeck/McDonald’s case. Bigbee was moving on with his life, when in 1986 - twelve years after the accident - Ronald Reagan mentioned his case in a speech on tort reform. Now, I will just read you a quick Wikipedia definition on tort, which is a legal term. “A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things.” (Wikipedia, n.d.). Reagan was an advocate for tort reform, which in the case of a personal injury lawsuit, would limit a plaintiff’s ability to recover compensation. Some reasoning behind tort reform is that these types of lawsuits can lead to things like higher product costs or loss of jobs if a company has to pay out a large settlement; but it is also argued that much of these corporate payouts go to the plaintiffs’ lawyers rather than the plaintiffs themselves. So tort reform is set out to limit the amount plaintiffs can receive in a personal injury lawsuit.


Reagan referred to the Bigbee case as being “looney” and that the tort system was “out of control” (D'Amico & Pettinicchi, LLC, 2016), misleading the public about the case and making a bit of a mockery of it. This was one of the first cases that received this type of media attention, misconstruing the victim as some type of opportunist.



Liebeck (LEEBECK) v. McDonald's Restaurants


So, HOW does this relate to a coffee case that took place in a different state almost a decade later? The Liebeck v. McDonald’s case is similar in the way it was misrepresented by influential people, media networks and later in popular culture. Both cases focus on negligence resulting in injury, and the details of the Liebeck case were equally as botched when reshared, yet the reach was even greater with this one. 


In 1992, Stella Liebeck was a 79 year-old widow. She had recently moved to Albuquerque, New Mexico to be closer to her daughter named Judy Allen. Stella had previously worked as a department store clerk but had recently left the job to move to Albuquerque.


Feb 7th 1992, Stella and her grandson visited the McDonald’s drivethru for breakfast and coffee. Her grandson drove a Ford Probe, which didn’t have cup holders. So when they pulled into the McDonald’s parking lot to have their breakfast, Liebeck put her coffee between her legs to hold it. She went to take the lid off to let it cool, but the cup spilled and hot coffee soaked the cotton sweatsuit that she was wearing and it also pooled in her seat. She was in so much pain that she went into shock and her grandson rushed her to the hospital.


It was later found that 16% of her body was covered in burns and that 6% were of the 3rd degree. 3rd degree burns go through the skin - so the epidermis and dermis and can also damage the underlying muscles, tendons, bones and nerves. She was in the hospital for a week, receiving treatment that included multiple skin grafts. Her medical bills totalled over $10,000 (which in today’s money is over $18,000 USD). The burns were absolutely terrible and I would NOT recommend googling them unless you are currently siding with McDonald’s on this case. Because these pictures will change your mind immediately.


Following the incident, Stella contacted McDonald’s asking them to check the temperature at which they serve their coffee at, and asking if they would reimburse her medical bills. McDonald’s replied offering Liebeck a total of only $800 to cover her bills. The Liebeck family hired a lawyer and tried to settle out of court TWICE, but McDonald’s refused, showing that they wanted the case to go to court.


At the time McDonald’s served their coffee between 180 and 190 degrees Fahrenheit, which according to the burn expert at trial, is hot enough to cause 3rd degree burns if in contact with the skin for over 15 seconds. Liebeck’s team suggested lowering coffee temperatures to 160 degrees, where the amount of time to cause a 3rd degree burn increases to 20 seconds (Gerlin, 1994). At the time, this was the same temperature that most coffee establishments served their coffee at - so it was the industry standard. According to them, it was the ideal temperature for their coffee to be at for both flavour and longevity.


Between 1982 and the time that Liebeck’s incident took place, over 700 people in the US had made burn claims against McDonald’s coffee. That’s 700 people, including children, who had also been scolded by their coffee. Some were hospitalized, some needed skin grafts and some received settlements from McDonald’s; but none gained as much traction in the news as Liebeck’s case.


McDonald’s claimed that of every 24 million cups of coffee served, only 1 burn is reported, which they deemed to be statistically insignificant. McDonald’s lawyer also stated that Liebeck had personal responsibility over her injuries since she was the one to spill it on herself. But Liebeck never said that McDonald’s was responsible for the spilled coffee. Her claim was that they are responsible for the serving temperature of their coffee. Which, if it’s causing 3rd degree burns, I am 100% with her.


It should be noted that Stella, who is in her 80’s at this point, had never tried to sue anyone in her life before this incident. The jury was given the information in its entirety and they were shown the images of the burns. And on August 18th, 1994, after 7 days of testimony and only 4 hours of deliberation the jury reached a verdict. They awarded her with 2.86 million dollars in damages - $160k in compensatory damages and 2.7 million in punitive damages. The jury wanted to send a message to McDonald’s that while the damages may not be “statistically significant” they are still injuring human beings. They came up with the almost 3 million dollar number since it’s the amount that McDonald’s makes in 2 days worth of coffee sales. Despite this decision, the judge reduced the total compensation to $640k, and the parties then settled out of court for an undisclosed amount under $600k. An unknown source claims that she ended up getting less than $500,000 (The New York Times, 2013).


But the story became a game of broken telephone when it hit the news. Headlines were used as clickbait, details were left out and no where did they actually show the images of her burns - because I feel like that would have stopped people from making light of the situation. Some news reports claimed she was driving with the coffee between her legs (which is untrue), others claimed that she received $3 million (which she didn’t). Just like in today’s world with “alternative facts”, the media made up their own story about what happened.


Quick aside - I was telling Dan about this case, and he suggested I look into something he had seen on TikTok saying that Burger King, who acquired Tim Hortons, had changed their coffee, and that McDonald’s now serves Tim Hortons coffee. And any Canadian knows how much we love our Tim Hortons coffee. I was all excited thinking this was a new news story - but we quickly found out it was completely fake. There are people with large platforms who will say or do almost anything for views, likes and website traffic. We as consumers have to be super careful, especially on TikTok. Even I took this information as fact before looking into it.


Following the case and subsequent news coverage, an organization called Contract with America put together what was called the Common Sense Legal Reform Act. They used Liebeck’s “coffee spill” case to demonstrate the need for tort reform and claimed that product liability cases needed more regulation and limits set on damages. In 1996, the group presented this bill to president Bill Clinton, who ended up vetoing the decision stating that “Any legislation...must fairly balance the interests of consumers with those of manufacturers and sellers” (END QUOTE) (Peters & Wooley, n.d.). This type of act would almost promote the sale of defective products and would disadvantage families that are injured.


Unfortunately Stella Liebeck passed away on August 5, 2004 at the age 91. Her daughter was interviewed saying that her last few years were stressful and that she had a fairly low quality of life. The amount she did receive helped cover the cost of a nurse in those last few years. It is super sad how one woman’s fight for what’s right ended this way. She was a victim that was portrayed as a villain. 


This case has been mentioned on multiple Late Night Talk Shows, in other shows like Futurama; even Seinfeld did an episode where Kramer trips onto someone drinking hot coffee in a movie theater and tries to sue. His lawyer says “you get me one coffee drinker on that jury, you’re going to walk out of there a rich man”, which is clearly poking fun at the case. And then in that short documentary by the New York Times, Liebeck’s daughter is interviewed saying that she used to love Toby Keith the country singer, and then he mentioned her mom in the song American Ride with the lyrics “spill a cup of coffee, make a million dollars”. So it’s a case that very few people know much about, yet it is misrepresented so much in pop culture.


One thing that is discussed WAY less is the fact that even after numerous burn cases and settlements that add up to more than $500k (other than Liebecks) (Gerlin, 1994), it is still McDonald’s policy to serve their coffee at 185 degrees - plus or minus 5 degrees (Cambridge News, 2007). I should make note that I received this number from a Cambridge News article from 2007 where a young boy was burned by the same McDonald’s coffee. I could not find a credible source or anything from McDonald’s stating their brewing or serving temperatures, which made me really curious. So this morning I drove to the McDonald’s nearest me with three meat thermometers and ordered a small coffee. I took the temperature of the coffee as soon as I pulled into the parking lot. I received 2 readings for 169 degrees fahrenheit and 1 reading for 178, so I think one of my thermometers may have been faulty. But even 169 is still HOT.


If you remember what I mentioned earlier - the burn expert stated that coffee at 160 degrees can cause 3rd degree burns in 20 seconds.


What do you think the optimal drinking temperature for coffee is?


One study from 2008 found the optimal drinking temperature for hot beverages to be 136 degrees F after testing 300 subjects (Brown & Diller, 2008).


By the time I got home with my McDonald’s coffee, the temperature was 134 degrees - and it was perfect. It could have even been a degree or 2 hotter. But that was after I sat in the McDonald’s parking lot with the lid open for 5 minutes and drove home, which took another 5 minutes. So WHY are they serving coffee at an undrinkable temperature? Why is it the norm to have to wait for our coffee to cool off after it being served to us? Consumers say they like HOT coffee, but no one actually likes burning their tongue. I was tempted to take a sip immediately to see what would happen, but decided against it.


The Swindled podcast does an excellent job covering this case, and in their research they found that Mcdonald’s had actually calculated the losses in lowering their serving temperatures - because coffee held at “190 degree has a longer shelf life than coffee at 160 degrees”. They found that it would be less expensive to resolve the burn cases than to lose the coffee held at a lower temperature.


Caution: Contents HOT


At the time, one of the reasons Liebeck won the court case was that the McDonald’s did not inform the consumer of the burn risk associated with their coffee. Following the case, McDonald’s and almost all other establishments that serve coffee placed the “Caution! Contents Hot” label on their hot liquid products. Coffee-serving establishments also developed some other safety measures such as the cardboard sleeves to protect your hands, and the smart lids with a flap over them. It seems that they did almost everything but reduce the temperature of their beverages. This case even influenced the automobile industry to include cup holders in all vehicles. 


One interesting thing to come from this case is that Liebeck vs Mcdonald’s is often now used as a test for juror selection - to see if they will listen to the facts presented on the case, or stick to what they have previously heard in the news. I found this multiple choice test online that allows you to be the juror in the case and tells you what would have happened had you made the final decision. I don’t know the legitimacy of it, but it was pretty interesting, and is only 6 questions.


MULTIPLE CHOICE: You be the Juror: How would you have judged the McDonald’s hot coffee case?

https://wethepeoplewethejury.com/judged-mcdonalds-hot-coffee-case/ 


To this day McDonald’s is still dealing with claims regarding their coffee. In January 2020 a woman who suffered burns from the coffee in Vernon, British Columbia, Canada sought $10k for medical expenses, lost wages, pain and the handmade alpaca cardigan that was wearing during the incident (Clow, 2020). SO it’s still happening. 


There is a fine line between corporate greed and consumer safety here, and it seems that in the Liebeck case, many people to this day still side with McDonald’s for some reason. However, we as consumers need to look out for ourselves. Would you take a sip of your hot coffee the moment it is handed to you in the drive thru? How would you feel if you spilled 169 degree F coffee on a family member? I think a lot of people would have different perceptions of this case had they been Stella Liebeck.