Dunkin’ Donuts’ apple cider ()
In a case reminiscent of the 1994 McDonald’s hot coffee case that became a flash point for tort reform, a New Jersey woman is suing Dunkin’ Donuts over severe burns she claims to have suffered when the lid on her hot apple cider dislodged and the hot contents spilled on her.
Jennifer Fragoso claims the cider was heated “beyond industry standards to the point where patrons could not safely consume it because it was not reasonably fit, suitable or safe for its intended purpose.”
She filed suit in Superior Court in Essex County against Dunkin’ Donuts and Anju Donuts, the owner-operator of the Belleville franchise where the accident allegedly took place.
The suit, Fragoso v. Dunkin’ Brands, Inc. d/b/a Dunkin Donuts, includes counts for negligence, product liability and breach of express and implied warranties.
The complaint does not focus on the adequacy of the beverage cup or lid, or of the printed warning, but rather on the temperature of the drink.
“We can’t avoid the obvious—obviously the drink was supposed to be hot and it was hot,” says plaintiff lawyer Amos Gern of Star, Gern, Davison & Rubin in Roseland. “The thrust of our claim was that the temperature exceeded reasonableness and posed a safety hazard.”
Fragoso, now 24, spilled the drink while sitting in her parked car outside the Dunkin’ Donuts on Sept. 24, 2012. She alleges she suffered second and third degree burns in the mishap.
She went through several months of treatment at The Burn Center at St. Barnabas in Livingston but is left with unsightly permanent scarring of the upper thighs and may require surgery in the future.
If the drink was at a reasonable temperature, it would not have caused third degree burns, Gern says.
Fragoso’s case bears similarities to Liebeck v. McDonald’s Restaurants, in which a New Mexico jury awarded $2.86 million, including $2.7 million in punitive damages, to a woman who suffered third-degree burns in the pelvic region when she spilled hot coffee purchased at McDonald’s in her car.
Testimony in that case established that McDonald’s serves its coffee at 180-190 degrees, and liquids at that temperature can cause third-degree burns. A judge later reduced the verdict to $640,000 and ultimately the parties settled for an undisclosed amount.
The Liebeck case was often cited by advocates of state tort reform laws. It was even the subject of a “Seinfeld” episode, where Cosmo Kramer burns himself trying to sneak a cup of coffee into a movie, then retains a Johnny Cochran-like lawyer to file suit.
The Liebeck case’s influence and the arguably negative impact of tort reform on the legal system was the subject of a 2011 documentary film “Hot Coffee,” directed by a former Maryland plaintiff lawyer, Susan Saladoff.
Most American adults have heard of the McDonald’s hot coffee case, since it was “the poster child for tort reform,” says Beth Bochnak, senior litigation consultant for National Jury Project Litigation Consulting in Madison.
Parallels between that case and the Dunkin’ Donuts suit could cause trouble for plaintiff counsel, since preconceived views could taint jurors’ ability to be impartial about the Dunkin’ Donuts suit and cause them to blame the plaintiff for her injuries, Bochnak says.
“There are some people who understood the coffee was unconscionably hot” in the McDonald’s case. “Then again, other people thought this was a real flim flam.”
To get a fair trial, a plaintiff lawyer facing such a situation should ask the judge to question prospective jurors at voir dire about whether they’ve heard about the McDonald’s case and what they think about it, says Bochnak. The plaintiff lawyer will have to impress on the trial judge, via a memo or motion, the need to ask follow-up questions of those jurors who are familiar with the earlier case, she says.
“Judges’ main goal, aside from having a fair trial, is to make things move quickly and they tend to ask questions in a way that doesn’t always elicit responses. ‘You won’t let that bother you, will you?’ ‘No sir.’ That’s a real problem for lawyers,” says jury consultant Bochnak.
Francisco Rodriguez—president of the New Jersey Association for Justice, a plaintiff trial lawyer group—agrees that effective voir dire is the key to trying any suit with parallels to the McDonald’s case. Many prospective jurors share the views of the tort reform movement, but judges tend to strictly limit voir dire on that issue, says Rodriguez, of Goldsmith, Ctorides & Rodriquez in Englewood Cliffs.
However, Rodriguez says, lawyers on both sides of the aisle in New Jersey have long complained that they don’t get sufficient voir dire and that most judges try to select a jury as quickly as possible.
“Unless you get a judge that’s willing to really explore the issues of bias in this context, it may be very difficult to exclude all such people. That’s where it could be difficult,” says Rodriguez.
Fragoso lawyer Gern says he is not concerned about prospective jurors linking his suit to the McDonald’s coffee case. He acknowledged that some people view the McDonald’s case as frivolous but says he will endeavor to keep such persons off his jury.
Gern’s cocounsel is John Ratkowitz of his firm.
The complaint has not yet been served. A Dunkin’ Donuts spokeswoman, Michelle King, said the Canton, Mass. company would not comment on the suit. A voicemail message left for Anju Donuts was not returned.