Sunday, May 24, 2009

WV Man Sues McDonalds For Mental Distress, Etc. After (Supposedly) Finding Part of a Fingernail in His Iced Mocha

And the hits just keep on comin’ . . .

Per this story from the West Virginia Record, a Mr. Jason Lycans of Putnam County is suing McDonalds after he bought an iced mocha and allegedly found “part of a fingernail”  in his drink.  Alas, no other details were given in the story about the  characteristics of the horrific contaminant.

Mr. Lycans, to no one’s surprise, apparently cannot present any proof that he actually contracted any disease from the item. Instead, he asserts that he is entitled to (presumably hefty) compensation for “medical testing”, emotional distress, and the lost ability to enjoy an iced mocha.

Of course, in many ways the real story here is not that someone is willing to bring  lawsuit against a deep-pocketed company (and its franchisees) with flimsy proof  and, even if the incident did actually occur, having suffered no real harm; everybody knows that there are many such greedy dirtbags walking around. The real story is which member of our glorious West Virginia Bar was willing to sign their name to such a suit.  According to the Record,  one Bree Whipp Ogle, Esq. of Atkins Law Offices  is representing the now mocha-less victim.


Alex said...

Whoa, hold on there, Mr. Tort Reform Activist. There is a oft-quoted standard for intentional infliction of emotional distress (IIED)claims: something about shouting "outrageous!" and going beyond the bounds of civilized society. I forget the exact phrasing, but there is a standard.

Isn't it a little premature to say that under no set of facts (I think WV is still operating pre-Twombly) could the plaintiff in this case make an IIED claim?

Do we know how the fingernail got in the mocha? Was it put there intentionally to freak the customer out? Was there a pattern of employees acting in such a manner? Did he ingest other parts of the finger that will cause him medical problems?

The answer to those questions is almost certainly "no" -- I grant that the claim seems wildly improbable on its face -- but I haven't read the complaint (or conducted discovery or a pre-discovery investigation), and such facts, if proven, might give rise to an IIED claim.

I think we should give the attorney the benefit of the doubt that the claim is plausible, made in good faith, etc.

Brian said...

Alex, I think you're on the right track but (also not having read the complaint) I think you've probably got the wrong "infliction of emotional distress" tort. I think negligent infliction of emotional distress would be a more likely claim here. Not having to prove the "intentional" element would certainly be a big help.

Still, I continue think the insurmountable weakness in the case is the triviality of the alleged injury. As far as I can tell from the news reports, there's no allegation whatsoever that the plaintiff contracted any actual disease from drinking the mocha. As I remember it, in cases where the plaintiff is alleging emotional distress but can't show physical injury the nature of the mental anguish has to be particually strong; strong enough that it leaves one with a solid conviction that the plaintiff isn't just faking the distress. From the facts in the news reports, the nature of the alleged emotional distress seems decidedly weak.

However, you are quite right that the limited news reports so far might not be entirely reflective of the strength of the factual allegations in the complaint, and in hindsight I probably should have qualified my post further. Still, from those limited reports it sure seems like another frivolous, publicity-seeking suit.