FindLaw's Don't Judge Me - The Craziest Lawsuits Ever, Part 1

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Vaidehi Mehta: Hello and welcome to FindLaw's Don't Judge Me, the show about law in real life. I'm Vaidehi Mehta, joined by my co-host this week Joe Fawbush. Hey, Joe.

Joe Fawbush: How's it going?

Vaidehi: Good, it's good to have you back, and we got Andy Leonatti as usual.

Andy Leonatti: Hello, hello.

Vaidehi: We are out Laura Temme today, but we have some-- We have a fun two-parter coming out to you this week, and next, because we decided it was time to rein in the crazies and tell you all about some of the outrageous lawsuits. You win some, you lose some, apparently, but some of the most ridiculous, maybe frivolous lawsuits that were made over, I don't know, the past decade or two and the ones that surprisingly did not lose.

Andy: Frivolous is in the eye of the individual judge-

[laughter]

Vaidehi: This is true.

Andy: -working on the case.

Vaidehi: Some of these cases, y'all will already be familiar with. Unsurprisingly, the famous McD's coffee burn case, which Joe is going to tell us more about.

Joe: Yes, so none of these listicles of the top craziest lawsuits can avoid this ultimate famous case where, of course, an older adult woman, she was about 79 years old, she ordered a cup of coffee along with her breakfast at McDonald's. She was in the passenger seat . . .

Andy: Let me stop you right there. What's your go-to McDonald's breakfast order?

Vaidehi: Oh my gosh.

Joe: Oh, that's a good question. I like a sausage McMuffin.

Andy: Okay, Vaidehi?

Vaidehi: Okay, you guys know I am still mostly plant-based and grew up vegetarian, so I grew up with one option but it was, in my opinion, the best option, the hash brown.

Vaidehi: I hope-- Do they still have those? It's honestly--

Andy: Those are still-- they're the crispiest hash brown on the planet.

Vaidehi: Crispiest hash browns. Also not hash browns. Like one large tater tot, one hash brown. I still love it.

Andy: I agree. Mine is one hash brown, two egg McMuffins.

Vaidehi: Okay.

Joe: We are not getting paid by McDonald's, but they do now have surprisingly good coffee, so I will occasionally get coffee--

Vaidehi: They never had bad coffee, they just had dangerous coffee.

[laughter]

Joe: Yes. As this poor woman found out. She pulled into a parking spot, she was in the passenger seat. You know how it is with a full cup of hot coffee, she opened up the lid a little bit, just to get some air in there, and she spilled. She was in a car seat that did not allow her to just have it-

Vaidehi: Like no cupholders.

Joe: -wash off. Yes, there was no cupholder in the car, and the seat was shaped in such a way that the hot liquid pooled in her lap, which was the worst thing that could happen-

Andy: Oh, my God.

Joe: -because this coffee was between 180 and 190 degrees, and this poor woman got third-degree burns. In researching this, I did look at the photos from the hospital and I would not recommend doing it because third-degree burns are--

Vaidehi: It's not worth that 49 cents, huh?

Joe: Yes--

Andy: This is not a medical podcast, so say no more.

Vaidehi: Okay.

Joe: Yes, exactly. We'll spare you the horrifying details, but she did immediately get rushed to the hospital. She was treated there. She had something like $10,000 in medical bills, and she asked McDonald's to pay for some of that. McDonald's came back with $800.

Vaidehi: Geez.

Joe: She said, "Well, no, not quite."

Andy: Here's one piece of the monopoly game that may or may not reveal a $10,000 price.

Joe: Exactly.

Vaidehi: I think the lesson here is, "Corporations, don't be greedy. Come on, you could have cut your losses without all this bad publicity if you just had agreed.

Joe: Well, actually, they didn't get bad publicity at all. The person who did get bad publicity was the woman because newspapers picked up on this story, and the headline was "Woman Sues McDonald's For Spilling Her Coffee and Wins Over $2 million." You read that headline, and the public was like, "Oh, our system of litigation in America is broken. This is ridiculous." You can-- [crosstalk] Go ahead.

Andy: This is the poster trial not just for what people would say like frivolous lawsuits, but tort reform too, they always talk about this case too, politicians and activists.

Joe: Yes. It was on late-night talk shows, it was on national news programs, and people really jumped on this as evidence that the system was broken, but people lost sight of the facts with this case. This is actually not as frivolous of a lawsuit as you might think. She was not the only person. This case that took place in the early '90s, and she, at the time, was not the only person who had gotten seriously hurt by McDonald's coffee.

McDonald's did know that if you spilled its coffee, you were at risk of hurting yourself. Their argument was that it happened so rarely that it was statistically insignificant, and they didn't have to worry about it. Which, you're a jury, you can say, "Well, statistics are one thing, but I'm looking at this photo of a woman with third-degree burns that McDonald's could, maybe, have prevented by turning down the temperature a little bit."

Vaidehi: Which they didn't, since. I've heard that they haven't changed their coffee temperature since.

Joe: Yes. They ended up paying something like $200,000 and compensatory damages. Damages for like medical bills and that sort of thing. It was reduced because she was the one who spilled the coffee. That's a legal theory called "contributory negligence." She did get reduced damages because her actions contributed to her injury. Then they also awarded 2.7 million in punitive damages. That's the number that really stuck out. The jury based it on two days of coffee sales for McDonald's nationwide. That was kinda where the jury got that figure from.

Andy: Now we all use cup holders.

Joe: Yes.

Vaidehi: This was not a strict liability lawsuit then, Joe. This was a theory of negligence against McDonald's. I don't think McDonald's has lowered its temperatures of serving coffee, but the way that they, I guess, are fending off future negligence claims of the similar store is by they have since put in warnings on the cups, on the foam cups that say, like, I don't know, "Really, really hot" or something. [crosstalk] There'll be some warning that it's really hot.

Andy: Too hot for human consumption.

[laughter]

Vaidehi: Too hot to handle. That's what their negligence avoidance action is, instead of just reducing the temperature. I don't know why. I think it continues, it has since faced other lawsuits, and other companies like Starbucks and Dunkin' Donuts and some British companies have also faced similar lawsuits for too hot, the serving temperature for their coffees.

Joe: One of McDonald's arguments in the case was that this was an industry standard. I think a lot of fast food places in coffee shops keep their coffee pretty hot. It's gotten better, I would always have to wait about 15 minutes before I could even have a sip of the coffee that I was given at McDonald's.

Vaidehi: Yes, or most places, honestly.

Joe: Yes. Honestly, most places for sure.

Vaidehi: You know what's a little bit less dangerous than 200-degree coffee?

Joe: I don't, no.

Vaidehi: One inch too short on your sandwich.

Joe: That is devastating.

Vaidehi: It's devastating, not likely to result in third-degree barns.

?Andy: What's devastating is that a foot long now costs $12 at the subway.

Andy: Thank you to Biden and Vladimir Putin.

[laughter]

Andy: Assign blame how you will.

Vaidehi: Yes. Blame it on Biden. Great tangent. Then might remember back like almost a decade ago, there was a whole lot of hoop law over, of course, subways $5 foot longs being like not quite a foot long. There was actually a lot of legal action taken in relation to it. Back in 2013, some Australian teen decides to measure his sando because teens are bored and will do anything. Someone had to do it at some point, it was coming. This kid takes a photo posted on social media. I think this is back when social media was still relatively new, at least new to me. Of course, it breaks the internet like Wreck It Ralph, and other people start measuring their sammies, post about it, bitch at subway. Honestly, the poor chain tries to respond by press statements saying, we're sorry. We're going to try to be better and make sure everything is 12 inches and kosher. Not literally Kosher.

Joe: I was going to say that.

Vaidehi: Observant Jewish people of America, you did not hear it from me. As an aside, I assume you all are familiar with stereotypes of Indian people owning certain specific businesses. The people from my particular state in India basically own all the subways in addition to Dunkin' Donuts, Baskin-Robbins-

?Andy: In America?

Vaidehi: CBYs, and every 2-Star Hotel in America. Yes, all of them. It's very specific. The point is that I, consequently, have worked at a subway, just filling in for family friends, and, guys, I can tell you the bread is not really freshly made. It's pre-made into breadsticks, stored and baked the morning of, because I was on bread duty. I hate to break it to you, folks, but-- [crosstalk]

Andy: What's your favorite subway order then?

Vaidehi: Oh man, it's been so long, and they have since come up with new things, but I used to love the-- One of the cheesy breads. It was like-- Oh, it was Italian herbs and cheese. That was my favorite bread.

Andy: What do you get on your sandwich though? What's your--

Vaidehi: They used to have a veggie patty, I don't know if they have it anymore, as a vegetarian, it was-- I think Indians owned this place a lot because it was so vegetarian friendly. We could have a lot of veggie orders there, so that was like that or Tacobell was vegetarian, Indians go-to.

Andy: Joe, what's your subway order?

Joe: Let's see. Probably an Italian BMT, with pretty much everything but lettuce. I go with a spinach, not lettuce, and then with some sweet onion dressing.

Andy: All right. I'm spicy Italian with, also the works, subbing spinach for lettuce, but I would do spicy mustard and vinegar and oil.

Joe: Ooh, that also sounds good.

Vaidehi: Oh, I liked their MISS VICKIE'S® Jalapeno chips. I did not care for their cookies, ever. I'm sorry, this is quite blasphemist. [crosstalk]

Andy: Oh no, and a white chocolate macadamia nut cookie.

Vaidehi: Oh God. Just so underwhelming. That "eat fresh" slogan is a little bit of a stretch because that bread is not exactly fresh, but, to be fair, it wouldn't be fair, it's not going to rise.

[crosstalk]

Andy: The yoga mats were made fresh that morning, though, I thought. Don't you remember that lawsuit or whatever, that they were using pieces of yoga mat in their bread?

Vaidehi: Oh geez. Oh my God. Well, I will not be blamed here because I just took it from the freezer and bought it and baked it. I did not make the dough, and to the circuit judge who eventually ruled in Subway's favor later in this lawsuit, as you'll see, she says, against the plaintiffs, she calls out their facts because she says "They premake these bread sticks and all of the raw dough sticks weigh exactly the same. All of them have the same amount of yoga mat material. Even if a roll fails to bake to a full 12 inches, it actually contains no less bread, no less Lululemon than any other roll.

?Andy: Did she mearsure-- What'd she do? Weigh out the frozen?

Vaidehi: You know how facts go in trial. She didn't do it, but the Subway's people were like, "Look, we weighed all of our breadstick dough [unintelligible 00:13:11] raw. [crosstalk]

Joe: Maybe we underproved it a little bit, or something, so when it picked up, it was 11 inches instead of 12.

Vaidehi: Yes, exactly. She was like, "Same bread, even if it's technically an inch shorter." Anyway, back to 2013, all this hubbub is going on on the internet, and, of course, it catches the eye of lawyers. Just within days of the Aussie kid's Facebook posts, plaintiff's attorneys from everywhere come rushing in, trying to get similarly situated people across the country and bring nine different cases.

Joe talked a little bit on our Monsanto episode about class action versus multidistrict litigations, or MDLs, and Subway also had the courts consolidate all of these cases across the country into an MDL at a single court in Wisconsin, but there was trouble seeking class damages, which would be monetary damages for the class, because there was difficulty in establishing that each potential plaintiff or class member actually suffered harm because, actually, a minority, a vast minority of the sandwiches, failed to live up to their advertised length and so individual hearings would have to be made to identify which purchasers actually receive undersized sandwiches, and by then, the social media meme had died down. Most people were just eating their sandwiches without measuring them at all, so proving this was hard.

Also, the other element of injury was difficult to prove, or the element of materiality, which is a requirement for damages, was an obstacle because you'd have to identify which customers cared about having a little bit less than 12 inches in order to have suffered the harm. There were a lot of reasons why they couldn't go forward, the attorneys couldn't go forward with class damages like monetary damages. They instead, eventually, refiled a class complaint seeking only injunctive relief, meaning "We want Subway to do something differently, instead of just giving us a bunch of money." They mediated, and the parties agreed, in principle, to a settlement in which Subway committed to implement some practices designed to ensure, as much as it could, that sandwiches measured at least 12 inches long. They were supposed to use measuring tools and other quality control things to keep this from happening again.

After agreeing to these injunctive terms, like practices that Subway can change, they also negotiated fees and eventually agreed to $520,000 in attorney's fees, and $500 awarded to each of 10-- $500, not thousand dollars, awarded to each of 10 named plaintiffs. The settlement is originally granted, but then the Seventh Court of Appeal, federal court, throws it out. The judge calls the settlement "utterly worthless." She says that the customer's lawyers were not entitled to attorney's fees for convincing Subway that it was better to make the case go away because it was such a frivolous case, in her opinion. She said, "A class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand."

?Andy: Ooh. Strong words.

Vaidehi: Yes, that's the circuit judge's words. There were prominent class action critics arguing that it made no sense to award so much in attorney's fees and so little to the plaintiffs, which I think is totally fair. If you take that and combine it with the fact that-- It's hard to have bread uniformity, and there was this whole dialogue about the fact that the amount of meat and cheese that's included with each sandwich is either standardized or customers can just keep telling you to add more toppings. The fact that you have 1/4 inch short of a foot long on your bread length doesn't actually diminish the quantities of toppings and meat and cheese, so you're ultimately really getting the same food. [laughs]

Andy: I always got to get those extra pickles.

Vaidehi: Oh yes. They don't charge extra, and neither does Chipotle in a lot of places, they don't charge extra for some toppings and sauces and condiments, so I just go ham on all the veggies. Why would you not? All that is to say, if you're really bored and a teenager, don't let ambulance chasers or foot-long followers, whatever you want to call these attorneys, get in your head about the fact that you have a real claim against a fast food corporation.

Joe: Although I could go for $500 in a sandwich right about now.

Vaidehi: Yes. After all the work and the hours that you put in participating-- I don't know how much each of these plaintiffs put in, in terms of time and energy. I could probably forego that little money. [laughs] This might have been a little bit more frivolous than the McDonald's suit, but wait till you hear what some people think they have entitlement to based on advertising of food and beverage.

Andy: Speaking of yeasted products--

Vaidehi: Great. Can always count on Andy for a solid transition.

Andy: We're switching up beverages. We got the coffee out of the way, and now we can switch to beer.

Vaidehi: The liquid bread.

Joe: Now, I don't know if you've ever seen a beer commercial, but I watch football and so I see beer commercials about everything.

Vaidehi: I don't always watch beer commercials, but when I do-- [laughs]

Joe: As you can imagine, beer tries to present itself as a really fun time for everyone. Also, it's gotten a little bit away from this, but it very much used to be about a guy drinking beer. For some reason, he is at the beach, and there's a handful of beautiful women around, and this guy has everything he could ever want.

Andy: Sometimes they appear out of thin air just by cracking the can open.

Joe: Yes, exactly. This case also took place in the early '90s. It was a little bit different of a time.

Andy: Oh, that was peak bikini beer commercial time.

Joe: Yes, they could get away with doing stuff like that that they couldn't anymore. There was one man in Pennsylvania who did not appreciate the suggestion that beer was going to make your life better, that you would all have a day at the beach, and that women would appear by your side magically, so he sued Anheuser-Busch, the largest beer distributor in the US, I think currently, but, certainly, at that time.

This was for Bud Light. He sued, and, again, the headlines here were a little misleading, but, basically, the headlines were, "Man sues Anheuser-Busch for lying about being able to attract women by using their product." Basically, it's this sad, lonely guy in a basement, drinking beer and wondering why beautiful women aren't magically appearing all around him.

Vaidehi: I thank God he didn't watch an Old Spice commercial.

[laughter]

Joe: You're right. As you can imagine, again, the press had a field day. This is one of those cases that's hard to believe that actually happened, but there is a little bit more meat to it than was first apparent.

Vaidehi: Just like an 11-inch sandwich, right? [chuckles]

Joe: Yes.

Andy: At this point, I have to stop you again. What is your go-to Anheuser Busch product?

Vaidehi: Oh gosh, love it, Andy. Well, you know what it's not, the Lime-A-Rita because you know what the Bud Light Ritas don't have, they don't have tequila in them, which is-

Andy: That's true.

Vaidehi: -the issue of another lawsuit, but that is for a later day.

Joe: I do not drink beer or any other alcoholic beverages, so, yes, I can't tell you.

Andy: Okay. As a die-hard Saint Louisan-

Vaidehi: Oh, God.

Andy: -my AB product of choice is Bud Select just for the record.

Vaidehi: I cannot say I've ever had that, I will give that a try just for you, Andy. I generally avoid-- Well, not to sound so pretentious, but I generally avoid really big crafts generic lagers, but just for you, I'll hunt that down.

Andy: There's a place for the work in men's beer.

Vaidehi: I've never even seen this. I don't even know where I would find an AB Select.

Andy: Sorry.

Joe: No, that's great. Yes. Anyway. This poor guy, everybody has an image in their head of this guy, sad and alone in his basement, just massively confused about the world and how it works.

[laughter]

Joe: As it turns out, he was actually married at the time-

Vaidehi: Oh.

Joe: -with three children.

Vaidehi: You're kidding me.

Joe: He was a teetotaler.

Vaidehi: Oh my God.

Joe: Really, his issue was that his children were watching these commercials, and he was upset about his children were-- At least, that's how he justified it later, I don't know.

Andy: Yes, you know how you get your children to not see those commercials?

Joe: Turn off the TV.

Vaidehi: Or, you know how you don't get your case dismissed, bring it on behalf of your kids. You can't allege an injury there if you do don't have one tear-- if you detail it all.

Joe: Well, that was really his problem because, yes, he sued for false advertising. Basically, what he's saying is that Anheuser-Busch is pretending like you'll live in a fantasy world if you consume their products and ignores all of the harm that beer does. He alleged beer causes death and serious injury and things like that, which is not an outrageous claim. It's similar to what people said about cigarettes.

Vaidehi: Smoking, yes.

Joe: Yes, but the problem was this third claim that he suffered personal damages, and that's where everybody had a field day about like, "Oh, really? Anheuser-Busch caused you to not have a wonderful life?" Basically, this-

Andy: I bet his wife-- Was his wife offended by all this?

Joe: I don't know, there were no quotes for the wife

Vaidehi: It sounds like he had a perfectly fine life if he had a wife and several children.

Joe: Yes, it sounds like, maybe, he was a little uptight about things, but it wasn't so much about-- he wasn't that sad as they made it sound. He alleged false advertising, but the District Court called that puffery, which is just a term for advertisement where if you're hawking a product, you're going to talk about how great it is, and mere puffery is not something you can file a lawsuit about.

Andy: I remember when I was a kid and I was disappointed that when I took Tylenol, it didn't make the area of my body that was in pain glow blue and instead of red because it was solving the--

[laughter]

Joe: Where is it the soothing blue color?

Vaidehi: Oh my gosh. Was that for real, Andy? Aw, it's adorable, but even if you are not a child, and an adult, regardless of how old you are, advertisers can get away with a lot of stretching, suspending, disbelief, exaggerating in the form of, as you said, Joe, puffery, and so they are not held to the standards of-- Otherwise, ads wouldn't work. If ads were 100% true, they just would not be effective.

Joe: Right. Yes. what did he expect them to do? Cut to an AA meeting in the middle of the commercials?

Vaidehi: Exactly. Oh, man. It's an interesting point, what cigarette companies are in a uniquely situated, but there are certain products that the FDA and the feds have ruled that are dangerous enough that they can't get away with certain forms of advertising, but, so far, alcohol, beer is not one of them.

Joe: Yes. I think the court said that it was a widely known issue. Everybody knows what drinking too much beer can do to you, so he couldn't recover based on that. It was pretty quickly dismissed. There was a little bit more to it, but it was still definitely something that, maybe, his attorney should have set him aside and said, "Do you really want to claim this?"

Andy: That'll teach you that'll teach you and anybody else to mess with the city of St. Louis and their cultural institutions like Anheuser-Busch.

Vaidehi: Oh man.

Joe: I love it.

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Vaidehi: That's all we have for today. Thank you so much for joining us on this episode of FindLaw's, Don't Judge Me, please subscribe to rate and review our show. Wherever you listen to podcast, check the show notes for related content. If you'd like to contact us, send us an email at findlawpodcast@thompsonwriters.com

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