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When S. Reed Morgan won a $2.9 million jury award 10 years ago for a grandmother who accidentally spilled McDonald’s coffee on herself, he prompted a tort reform storm that has barely abated since. Morgan’s 1994 case was immediately seized upon as a symbol of an out-of-control society overeager to sue. Morgan’s client, Stella Liebeck, turned into the namesake for the “Stella Award,” a mocking honor that skeptics continue to slap on lawsuits they want to ridicule. Apart from the rhetoric, Liebeck’s case had a significant impact on daily life. Coffee sellers absorbed the jury’s message and subsequently added safety features such as better-gripping lids. The effect on the courts wasn’t as lasting. The McDonald’s Corp. settled rather than pursue appeals. And the suit never prompted a flood of coffee-spill cases in the civil courts. Indeed, Morgan has handled only three cases involving the beverage since Liebeck’s suit. Mostly, he helps boat and railroad workers recover damages for on-the-job injuries. The living he earns from suing transport companies allowed him a few years ago to move his solo practice from Houston to a town northwest of San Antonio fittingly named Comfort. But Morgan and his coffee-cup cause may be moving back to the front burner. He has a new McDonald’s coffee case, one that closely resembles the Liebeck suit — and his first set to go to trial since then. Morgan’s opening statement is scheduled for July in Post, Texas. His client is Maxine Villegas, a grandmother in her 70s. Villegas was a passenger in a car stopped at a drive-through when coffee splashed on her legs and left third-degree burns. Villegas testified in a deposition that the coffee spilled out as her sister passed the cup. Since Morgan’s 1994 victory, he has turned down many other coffee plaintiffs. “I’m not interested in handling them unless there’s third-degree burns, because of the whole penumbra effect that they’re allegedly frivolous,” he says. Third-degree burns refute that accusation, he believes. Villegas’ complaint poses an unusual challenge for McDonald’s strategists. In light of the influence of the earlier suit on the 90-million-cup-a-day industry, would they rather fight or settle? Revenge is sweet. If you can get it. A DEFECTIVE BEVERAGE In the case of Stella Liebeck, Morgan convinced an Albuquerque jury that McDonald’s sold “unreasonably dangerous” and “defectively manufactured” coffee. Liebeck, then 79 years old, had set a cup between her legs while sitting in a parked car. But she tugged too hard and coffee splashed into her lap. Liebeck squirmed in the bucket seat while the approximately 170-degree beverage seared her skin. She spent a week in the hospital, and then returned a month later for skin grafts to heal the second- and third-degree burns across her buttocks, thighs, and labia. McDonald’s denied that it was selling coffee that was too hot or, indeed, that it had done anything wrong at all. Defense attorney Tracy McGee (now Jenks), of Albuquerque’s Rodey, Dickason, Sloan, Akin & Robb, told the jury that Liebeck had been “unwise” to hold the coffee as she had. “The real question is how far you want our society to go to restrict what most of us enjoy and accept,” said Jenks. The jury gave Liebeck $200,000 for compensatory damages, then knocked off 20 percent because she had contributed to the accident. Jury members said that they tacked on another $2.7 million to punish McDonald’s for its corporate coffee policy. The judge reduced the total award to $640,000. Then the two sides settled confidentially. McDonald’s current general counsel, Gloria Santona, says the loss was a fluke because an unfamiliar insurer, representing the franchise, set trial strategy: “If we had had better communications, we would have had a heads-up and would have been much more actively involved in the defense.” Jurors told Newsweek at the time that an expert for the company inadvertently helped sway them by suggesting a degree of corporate indifference. After learning that 700 people had complained to McDonald’s about the heat of its coffee, safety consultant Robert Knaff calculated that the number of complaints equaled one problem for every 24 million cups sold. This was, he said, “basically trivially different from zero.” One juror explained the decision to award millions in punitives thus: “It was our way of saying, ‘Hey, open your eyes. People are getting burned.’ “ DRINKING SAFELY Coffee sellers listened. “It caused the industry to look at itself and its standards, and say, ‘Are we sure we know what we are doing?’ ” recalls Ted Lingle, executive director of the Specialty Coffee Association of America. “We are selling a product that represents a hazard. No one denies that,” Lingle says. “So the question then is, how do we keep it reasonably safe for the millions of consumers who enjoy it every day? And the answer is in more secure packaging.” Hot beverages-to-go are now sold in stronger cups and often with sleeves to make the cups easier to handle. Most cars today come with beverage holders. In the courtroom, though, McDonald’s and other sellers have fought back against the jury finding that Liebeck was handed unreasonably hot coffee. In the few dozen cases that have gone to trial since 1994, coffee sellers have pointed out that the beverage must be brewed at 195 to 205 degrees Fahrenheit, or else the grounds won’t release the flavor. Moreover, most people prefer coffee at 161.8 degrees Fahrenheit, a University of California at Davis study shows. That’s why the industry’s standard serving temperature is 160 to 185 degrees, says Lingle. In addition, although the plaintiff’s experts had testified in the Liebeck case that coffee of 170 degrees would cause second-degree skin burns in two seconds, a person’s tongue and mouth lining are thicker than a person’s skin. What scars your hand melts in your mouth. At stake in Morgan’s suits then and now, contend those in the coffee trade, is whether consumers will be able to enjoy coffee in the manner to which they have grown accustomed — sipping a reassuringly hot beverage. Morgan’s cases for individual consumers tend toward products that, like hot coffee, remain unregulated for safety. For instance, he has filed a couple of cases challenging the absence of safety features on forklifts. TOO DARN HOT? In Villegas’ coffee case, Morgan again will focus on temperature. McDonald’s will not say how hot its coffee should be at serving. Starbucks recommends 175 to 185 degrees Fahrenheit. “For all practical purposes, that’s too dangerous,” Morgan insists. “There’s no margin of safety when you have something unexpected occur.” Like a lid popping off. But the lawyer from Comfort must grapple with a decade of change in public opinion. General Counsel Santona declines to discuss the company’s defense strategy. It is possible that McDonald’s will reply to Villegas’ failure-to-adequately-warn claim by arguing that years of packaging improvements clearly signal that coffee drinkers must beware. Morgan contends that, in general, the newer safety features remain inadequate. The protective sleeves, he says, confirm that the coffee remains too hot. He maintains that all sellers should be warning customers that the liquid is not merely hot, but scalding. Recently, Morgan says, settlement talks have intensified. If the case makes it to court next month, Michael Byrd of Lubbock’s Byrd & Associates and David Whitehurst of Addison, Texas’ Whitehurst & Cawley will lead the defense. One reason why McDonald’s might want to take the case to a jury is that attitudes may have turned too far against Morgan for him to win this time around. The 1994 jurors told reporters that, at first, they were annoyed that they had to hear a seemingly silly case over spilled coffee, filed by a lifelong drinker of the brew. The jurors today may react similarly. They have heard a decade of clamor about loony lawsuits and the unnecessary warning labels they spawn — as well as the legend of a grandmother scalded by coffee: Wasn’t that warning enough for Villegas? A rematch between Reed Morgan and McDonald’s, pitting safety against drinking pleasure, would be a colorful showdown. It could influence your enjoyment of your morning roast, as we know from history. One last consideration may be eating at McDonald’s lawyers. A trial likely would generate jokes for Jay Leno and David Letterman — but at whose expense? Matt Fleischer-Black is a senior reporter with The American Lawyer , where this article first appeared in the June issue.

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