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While many people use the case of the woman who sued McDonalds over coffee that was too hot to show the frivolousness of lawsuits, they do not talk about how hot the coffee really was and that the seventy-nine-year-old woman was hospitalized with severe injuries; the case was ultimately settled. Now another patron of McDonalds has sued because his lips were severely burned after biting into an extremely hot fried-chicken sandwich. A federal appeals court ruling out of Virginia has allowed the case to go forward.

When Frank Sutton bit into his sandwich, a fellow diner recalled scalding grease flew all over his mouth. Mr. Sutton’s wife took ice from her drink and applied it to his face, however his lips still blistered. When he told one of the employees what happened, she replied that this is what happens when the chicken is not drained entirely. The next morning, Mr. Sutton awoke to find his lips had bled all over his pillow.

Seven months later, Mr. Sutton’s injuries still had not fully healed. He says he avoided work assignments at his job of refurbishing and assembling outdoor amusement rides if he thought they would make his lip condition worse. Mr. Sutton thus sued McDonalds and the local franchisee for $2 million alleging this was the appropriate amount for medical bills, lost wages, and pain and suffering. A federal district court dismissed the suit, ruling that Mr. Sutton failed to prove what standard McDonald’s was required to meet in handling its food and that he carries much of the blame because he failed to exercise reasonable care. In late February, however, the United States Court of Appeals for the Fourth Circuit, sitting in Richmond, Virginia, reinstated the suit. If Mr. Sutton’s account of the incident is true, the court said, it could constitute a violation of Virginia’s food safety laws. The judges ruled he had presented enough evidence for a jury to reach that conclusion.

This opinion out of the Fourth Circuit Court of Appeals, one, if not the, most conservative federal circuit in the country, is remarkable for that very reason. The Fourth Circuit is not generally thought to be a place where personal injury plaintiffs seek to have their cases heard; in fact, most personal injury defendants love to remove a case filed against them to federal court, where there are many procedural traps for the unwary (causing a case to be dismissed), and where a federal judge is thought to be more likely to rule in favor of an insurance company or corporation rather than an individual. So, given the above, I was shocked when I read this opinion. I was also encouraged that the court was going to apparently let a jury decide this case, which is what should happen, regardless of how the case turns out.

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