McDonald's counts the cost of hot, hot coffee: Big Mac's 'naive' defence crumbles in face of scalded customer's wrath

WHEN a law firm in Albuquerque, New Mexico, found itself defending McDonald's Corp in a suit last year that claimed the company served dangerously hot coffee, it hired a law student to take temperatures at other local restaurants for comparison.

After dutifully slipping a thermometer into steaming cups and mugs all over the city, Danny Jarrett found that none came closer than about 20 degrees to the temperature that McDonald's coffee is poured, about 180F (82C). It should have been a warning. But McDonald's lawyers went on to dismiss several opportunities to settle out of court, apparently convinced that no jury would punish a company for serving coffee the way customers liked it. After all, its coffee's temperature helped to explain why McDonald's sold a billion cups a year.

But now - days after a jury in Albuquerque awarded dollars 2.9m ( pounds 2m) to an 81-year-old woman scalded by McDonald's coffee - some observers say the defence was nave. 'I drink McDonald's coffee because it's hot, the hottest coffee around,' says Robert Gregg, a Dallas lawyer. 'But I've predicted for years that someone's going to win a suit, because I've spilled it on myself. And unlike the coffee I make at home, it's really hot. I mean, man, it hurts.'

McDonald's requires that its coffee be prepared at very high temperatures, based on recommendations of coffee consultants and industry groups that say hot temperatures are necessary fully to extract the flavour during brewing. Before the trial, McDonald's gave the opposing lawyer its operations-and-training manual, which says its coffee must be brewed at 195F to 205F and held at 180F to 190F for optimal taste.

Coffee temperature is suddenly a hot topic in the US food industry. A spokesman for Dunkin' Donuts Inc, which sells about 500 million cups of coffee a year, says the company is looking at the verdict to see if it needs to make any changes to the way it makes coffee. Others call it a tempest in a coffeepot. A spokesman for the National Coffee Association says McDonald's coffee conforms to industry temperature standards. And a spokesman for Mr Coffee Inc, the coffee-machine maker, says that if customer complaints are any indication, industry settings may be too low - some customers like it hotter.

Coffee connoisseur William McAlpin, an importer and wholesaler who owns a coffee plantation in Costa Rica, says 175F is 'probably the optimum temperature, because that's when aromatics are being released. Once the aromas get in your palate, that is a large part of what makes the coffee a pleasure to drink.'

Public opinion is squarely on the side of McDonald's. Polls have shown a large majority of Americans - including many who typically support the little guy - to be outraged at the verdict. And radio talk-show hosts around the country have lambasted the plaintiff, her attorneys and the jurors on air.

It is a reaction that many of the jurors could have understood - before they heard the evidence. At the beginning of the trial, jury foreman Jerry Goens says he 'wasn't convinced as to why I needed to be there to settle a coffee spill'.

At that point, Mr Goens and the other jurors knew only the basic facts: that two years earlier, Stella Liebeck had bought a 49 cent cup of coffee at the drive-in window of an Albuquerque McDonald's and, while removing the lid to add cream and sugar, had spilled it, causing third-degree burns of the groin, inner thighs and buttocks. Her suit claimed the coffee was 'defective' because it was so hot.

What the jury did not realise initially was the severity of her burns. Told during the trial of Mrs Liebeck's seven days in the hospital and of her skin grafts, and shown gruesome photographs, jurors began taking the matter more seriously. 'It made me come home and tell my wife and daughters, 'Don't drink coffee in the car, at least not hot,' ' says one juror, Jack Elliott.

Even more eye-opening was the revelation that McDonald's had seen many burn injuries before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third-degree, and had settled claims arising from scalding injuries for more than dollars 500,000.

Some observers wonder why McDonald's, after years of settling coffee-burn cases, chose to take this one to trial. After all, the plaintiff was a sympathetic figure: an articulate, 81-year-old former department store clerk, who said under oath that she had never sued before. In fact, she said, she never would have filed this one if McDonald's hadn't dismissed her request for compensation for pain and medical bills with an offer of dollars 800.

Then there was the matter of Mrs Liebeck's attorney. While recuperating from her injuries, Mrs Liebeck happened to hear of a Houston attorney, Reed Morgan, who had handled a 1986 hot-coffee lawsuit against McDonald's, and who ever since had considered that McDonald's coffee too hot.

For that case, involving a Houston woman with third-degree burns, Mr Morgan had the temperature of coffee taken at 18 restaurants, such as Dairy Queen, Wendy's and Dunkin' Donuts, and at 20 McDonald's restaurants. McDonald's, his investigator found, accounted for nine of the 12 hottest readings. Also for that case, Mr Morgan took a deposition from Christopher Appleton, a McDonald's quality-assurance manager, who said 'he was aware of this risk . . . and had no plans to turn down the heat', according to Mr Morgan. McDonald's settled that case for dollars 27,500.

As the Albuquerque trial date approached, McDonald's declined to settle and continued to deny any liability. The company suggested that Mrs Liebeck might have contributed to her injuries by holding the cup between her legs and not immediately removing her clothing. It also argued that 'Mrs Liebeck's age may have caused her injuries to have been worse than they might have been in a younger individual', since older skin is thinner and more vulnerable.

The trial lasted seven days. Experts duelled over the temperature at which coffee causes burns. A scientist testifying for McDonald's argued that any coffee hotter than 130F could produce third-degree burns, so it did not matter whether McDonald's coffee was hotter. But a doctor testifying on behalf of Mrs Liebeck argued that lowering the serving temperature to about 160F could make a big difference, because it takes less than three seconds to produce a third-degree burn at 190F, about 12 to 15 seconds at 180F, and about 20 seconds at 160F.

The testimony of Mr Appleton, the McDonald's executive, had not helped the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but had not consulted burn experts about it. He said that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people would not think it possible. Finally, he testified that McDonald's did not intend to change any of its coffee policies or procedures, saying: 'There are more serious dangers in restaurants.' Mr Elliott, the juror, says he began to realise that the case was about 'callous disregard for the safety of the people'.

Next for the defence came P Robert Knaff, who told the jury that hot-coffee burns were statistically insignificant when compared to the billion cups of coffee McDonald's sold annually. 'There was a person behind every number, and I don't think the corporation was attaching enough importance to that,' says juror Betty Farnham.

When the panel reached the jury room, it swiftly arrived at the conclusion that McDonald's was liable. 'The facts were so overwhelmingly against the company,' says Ms Farnham. 'They were not taking care of their consumers.'

Then the six men and six women decided on compensatory damages of dollars 200,000, which they reduced to dollars 160,000 after determining that 20 per cent of the fault belonged with Mrs Liebeck for spilling the coffee.

The jury then found that McDonald's had engaged in wilful, reckless, malicious or wanton conduct - the basis for punitive damages. Mr Morgan had suggested penalising McDonald's the equivalent of one to two days of company-wide coffee sales, which he estimated at dollars 1.35m a day. In the end, the jury settled on dollars 2.7m. McDonald's has asked the judge for a new trial, and the judge has asked both sides to meet a mediator, before he rules on McDonald's request. He also has the authority to disregard the jury's finding or decrease the amount of damages.

Industry officials doubt that there will be any company-wide change in policy. After all, customers who buy McDonald's coffee at least once a week say that 'morning coffee has minimal taste requirements, but must be hot' - to the point of steaming.

Reprinted by permission of the Wall Street Journal (Asian/European)

Copyright 1994 Dow Jones & Co, Inc. All Rights Reserved Worldwide.

(Photographs omitted)