Attorney Versus Food: Fried Chicken, Frivolity, and Tort Reform

By Michael GrossmanNovember 07, 2016Reading Time: 7 minutes

While personal injury lawsuits typically result from injuries or loss of life in motor vehicle crashes, defective premises, or botched medical procedures, some lawsuits have a more colorful origin. Unfortunately, these oddball lawsuits are the ones that get lots of press coverage and raise the ire of people who think that lawyers are looking to sue people at the drop of a hat.

So when I came across a story about a lawsuit involving a fried chicken injury, I figured I'd dig a little deeper and see if the strange circumstances of the case come from a legitimate controversy or if it's just a big waste of everyone's time.

Fried Chicken Law? Is That a Thing?

Attorney Paul Newton Jr. of Gulfport, Mississippi recently filed suit against Popeye's Chicken restaurants on Monday, October 31. According to the plaintiff, he was endangered when the location where he placed his order neglected to provide him with a knife to cut his fried chicken.

Plastic spork
Pictured: insufficient cutlery.

Newton alleged that he was "forced to use his hands" to eat one of two chicken breasts that came with his drive-thru order. The attorney "almost choked to death" as he tried to negotiate his food and took an unmanageable bite. He posited in the suit that the lack of included cutlery led to his predicament, as he was only provided with a spork that was intended for use with his side of red beans and rice.

Newton sought a jury trial in which he hoped to gain compensation for medical expenses, pain and suffering, and punitive damages. His complaint also called for the chain's future customers to receive plastic knives with their meals so they can "cut the chicken breast into appropriate portions."

Former Popeye's employee Tory Stokes weighed in on Newton's difficulties when interviewed by local news sources:

"If you choke on your chicken and you have to get [it] removed from your throat, it's not because Popeye's didn't apply a knife to the box...Maybe you should slow down eating. Nobody eats chicken with utensils."

Newton has since dropped the suit, citing harmful public backlash directed against him and his family on social media. It appears after the media released the story, the attorney's page filled with outraged and bemused people asking what purpose a knife truly serves with respect to fried chicken. Some gently ribbed him about his status as a Southerner, and others suggested taking more care in how big of a bite he takes in the future. As tends to happen on the Internet, however, many comments transcended humor and went straight to threats of violence and ornate abuse. While Newton still believes extra cutlery should be implemented by Popeye's, he is not prepared to pursue his claim to its conclusion in the face of "extreme comments made to [him] and [his] family."

While intimidation is never a good reason for not pursuing justice, I would venture that the public reaction alerted the attorney what kind of reception his claim would receive from a jury.

Frivolous Lawsuits Are Real, But Tort Reform Isn't the Answer.

How did a bizarre Mississippi lawsuit make enough news that I heard about it in Dallas, Texas? It's an example of another local novelty story groups who wish to restrict lawsuits amplify in order to create outrage. In short, it was pushed by tort reformers with an agenda.

Not everyone may be familiar with the term tort reform, but most have heard someone complain about "frivolous lawsuits taking valuable time and resources." This battle-cry is often the subject of legislative campaigns that seek to eliminate some options for people injured by a business' negligence. Tort reformers cite examples that come up from time to time of litigants who appear to be trying to manipulate the legal system in an effort to get "something for nothing."

This idea has been around so long that it has worked its way into popular culture. Consider the common trope: A hustler with a neck braces and crutches shows up to court after a traffic accident, exaggerating his damages far beyond the bruises he actually sustained. The term "whiplash," while depicting a real and painful neck or spinal misalignment, is also considered something of a "cash grab" thanks to similar depictions on TV and in movies.

While their central message is inherently flawed regardless, tort reformers do not have to rely on the leverage of fiction and cliché. They are often able to cite real-world claims that can be spun to support overhauling the civil justice system. A pair of favored examples are Liebeck v McDonald's Restaurants, aka "The Hot Coffee Case," and Pearson v Chung, or "The Pants Lawsuit."

  • Most have heard the basics of 1994's Liebeck, in which a 79-year-old woman sustained third-degree burns when she spilled coffee she had just ordered from McDonald's into her lap. After a sustained trial, a jury awarded Stella Liebeck $2.86 million for her damages; a large portion of that settlement was punitive damages directed at McDonald's restaurant for negligent preparation and temperature control of their coffee, as well as ignoring years of similar complaints from other customers. This case was described for many years afterward as "the poster child of excessive lawsuits," and tort reformers to this day continue to (erroneously) call it a classic example of "molehill to mountain" litigation. Other litigators are quick to point out that many of the case's relevant facts, such as Liebeck's need for skin grafts and her resultant two-year disability, have been downplayed or ignored by these same pundits.
  • Pearson follows a different path that on the surface more accurately cleaves to the idea of a "frivolous" suit. District of Columbia judge Roy Pearson filed suit against Custom Cleaners, a neighborhood dry-cleaning business run by the Chung family, over a pair of misplaced pants. Rather than seek the cost of a replacement pair, Pearson alleged that the establishment had violated its promises of "Satisfaction Guaranteed" and "Same Day Service" and demanded $67 million in damages, which he later amended to $54 million. Ignoring three attempts by the Chungs to settle for sums far exceeding the price of the garment, Pearson pushed for the full amount, the bulk of which was allegedly to assist other "victims of false advertising." The trial itself was apparently quite an ordeal, full of Pearson's tearful histrionics as he described the trauma of his missing trousers.
    As might be expected in a system performing as it should, the court rejected Pearson's claim and his subsequent demands; he was denied compensation. Based on his questionable actions during the trial, his contract as an administrative law judge was not renewed in D.C., effectively ending his legal employment. Appeals related to both his pants and his dismissal were denied, and the only lasting thing he gained from the trial is the appellation "Judge Fancy Pants."
    His case is regarded by some as an embarrassment to the legal system. Bill Schulz, a prominent trial lawyer and spokesman for the American Association of Justice, had this to say about Pearson v Chung:

    "[Pearson] should not be used as an indictment against the civil justice system in this country because it works quite well, thank you, for people -- ordinary people -- who are seeking real justice for real cases of negligence and wrongdoing."

The Chicken Case Would Have Been a Good Lesson to Tort Reformers.

On one hand, had Newton's case reached its logical conclusion--that is, being roundly rejected by the justice system, it could have served a valuable lesson about how well the courts can protect themselves from those who would seek to abuse them. The unsympathetic online response from the public could be seen as indicative of a jury's temperament, and despite his claims about personal safety concerns, it could be that they also gave him a clearer notion of his apparent chances.

The unfortunate reality is that in the mind of tort reformers, they had everything their agenda needed when the attorney filed his lawsuit. Even if the alleged wrongdoing was tossed from court, that part of the story would never make it into the news, just as no one hears about the "pants judge" losing his job, or the "hot coffee lady" sustaining truly horrific burns and having her jury award reduced on appeal.

It wouldn't surprise me if this matter is investigated by the Mississippi bar. As an attorney, Mr. Newton is an officer of the court. This means he has a professional obligation not to bother the court with frivolous matters. I don't believe that a reasonable attorney could have looked at this case objectively and thought that it had any merit. It's quite likely that for most outside of the legal profession, it appears that Mr. Newton was using the profession to shakedown Popeye's for money. This behavior doesn't just harm one attorney's reputation, but the profession as a whole.

While no one condones the treats of Internet commenters, I agree with their underlying message: Popeye's has no logical burden to explain the optimal way to eat its food. It's fried chicken, which has not appreciably changed in preparation or consumption methods in over a century. Moreover, applying reasonable caution to chewing and swallowing is not asking too much in the interest of self-preservation.

I am glad that Newton survived his ordeal, and it is a pity that such an event occurred at all, but his pursuit of grievance against Popeye's for a duty they didn't owe and an injury they didn't cause is just fuel on the fires of tort reform. Ultimately, to push for such measures is to show a lack of faith in the system. Some lawsuits may be perceived as "frivolous" by courts and the public, but they aren't viewed as such by the plaintiffs who bring them. To do away with their liberty to seek justice is to infringe on their Constitutional right to do so. Everyone deserves the right to seek redress if they feel they are entitled, and while a court may find it disagrees with the plaintiff, the dice are still rolled instead of being locked away because they could come up snake-eyes.

I'm not going to compare the degree of Mr. Newton's possible offence to the nazis who marched through a Jewish neighborhood in Skokie, Illinois years ago, but they both share the same lesson that part of having fundamental rights is that people will use them in ways that most of us find unacceptable. We have two choices as a society; we can ignore the outliers and treat them as the price that we pay so that we can enjoy as much freedom as possible; or we can restrict those behaviors in ways that will ultimately rob the rest of us very important rights. There is no third choice.