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Brown M&M’s and Hot Coffee

3 comments

Brown M&M and Hot Coffee

 

Liebeck v. McDonald’s.  You know the case… or at least you think you do.  It’s been 20 years since the McDonald’s “hot coffee” verdict was awarded and it’s still making news.  Just this week, stories about this case have appeared at blogs Abnormal Use, Overlawyered, and the New York Personal Injury Law Blog.  Ezra Klein wrote about the case just yesterday on Vox.

Klein’s article examined what he described as the “Van Halen Principle”: that tales of someone doing something unbelievably stupid or selfish or irrational are often just stories you don’t yet understand.  The Van Halen Principle traces its origin to the infamous contract rider the band had in place in the early 1980s.  On page 40, the contract addressed M&M’s and said: “WARNING: ABSOLUTELY NO BROWN ONES”.

On its face, the contract rider screamed of prima donna rock star excess.  But there was a very specific purpose for the “Brown M&M’s” rider – and it had nothing to do with brown M&Ms or diva-like demands.

Van Halen’s brown M&M’s are synonymous with rock-star excess.  But the band didn’t care about brown M&M’s.  They cared about knowing whether the venue had carefully read the contract.  They were a pioneer in bringing arena-like performances to smaller cities.  That meant huge, hot lights; insanely heavy equipment; thick cables snaking across the stage.  If something went wrong, it could go very wrong.

Hence the brown M&M’s.  “If I came backstage and I saw brown M&M’s on the catering table, it guaranteed the promoter had not read the contract rider, and we had to do a serious line check,” David Lee Roth later explained.

- Ezra Klein at Vox

And that brings us back to Stella Liebeck.  As Klein put it, “The facts of the case sound insane.  But that’s because they’re not the facts of the case.”

Today, 20 years later, it doesn’t matter all that much what the facts really were.  It only matters how the public perceives the facts.  The bastardized facts are still trotted out regularly by corporatists seeking to undermine the civil jury system in order to thwart accountability for their conduct.  Turkewitz is correct in his analysis that at the end of the day, it doesn’t really matter what we (trial lawyers) think about the case; it only matters what “they” think.

Turkewitz was talking about jurors, but “they” also extends to the public in general and lawmakers specifically.  As long as the public has the wrong impression about this case, it will continue to be used as ammunition in the war against justice and accountability.

© Copyright 2014 Brett A. Emison

Follow @BrettEmison on Twitter.

3 Comments

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  1. Mike Bryant says:
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    Very interesting and very correct.

  2. cliff goldstein says:
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    The focus must not be on the severity of the burns or on media reports that falsified the facts. The reality is that Americans are on an almost continuous search for someone to blame for nearly every accident or misfortune. McDonald’s was no more to blame than was Ford for failing to provide a cup holder or flat surface in the car – it was certainly foreseeable that someone would drink hot beverages in the front seat. Stella had an accident. No one was to blame. Accidents happen, even when there is no deep pocket against whom to file a claim.

  3. Brett Emison says:
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    @Cliff

    “Americans are on an almost continuous search for someone to blame for nearly every accident or misfortune.”

    That’s just not true. The Rand Institute for Civil Justice (partly funded by insurance companies) found that only 1/10 Americans file any claim – not just lawsuits, but also informal demands and insurance claims. Only 2% ever file a lawsuit.

    Americans simply don’t have a “lawsuit mentality”. And the true fact is that Stella was never after a “deep pocket”. Stella offered to settle the case multiple times for just the amount of her medical bills. McDonald’s refused.

    The fact is McDonald’s made a business decision to sell excessively hot coffee that it knew was injuring people – McDonald’s had more than 700 reports of injury and kept selling the coffee anyway.

    Sometimes an accident isn’t just an accident.