Saturday, January 03, 2004

More on Coffee

Over at, the perpetually diverting Ted Frank expresses dismay that coffee-burn litigation has again reared its controversial head, this time in a lawsuit against Starbucks boasting a $10 million ad damnum clause.

Frank says the lawsuit's filing shows that the "plaintiffs' bar" (at least he didn't say "trial lawyers") "misled" people insofar as it claimed that McDonald's was serving coffee at temperatures so high as to fall outside the commercial mainstream. Actually, of course, if such a thing has been shown at all, it would be the burns from the Starbucks coffee that have shown it, and not the filing of some lawsuit. But that's an unimportant quibble, compared to the larger point, which is that the new litigation cries out for application of the blog 702 test: Did the coffee possess sufficient gastronomic appeal to justify the high temperature at which it was served? In the case of McDonald's, the answer seems a clear no. But Starbucks might have a better chance.

Ted Frank responds: "I don't think the entry I posted ever claimed that the lawsuit's filing, rather than the burns themselves, showed that McDonald's coffee was not uniquely hot. You're the second prominent person to suggest that I've indicated dismay over the Arslanian lawsuit, but the post expressly disclaims any criticism of Arslanian's complaint."

We respond right back: The "quibble" we discussed may be with our own mischaracterization, and apologies are due if we have mistaken Ted Frank's meaning. Meanwhile, it is mildly alarming to be called prominent.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.