The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims

James M. Dedman, IV

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

At its essence, the case revolved around how the restaurant prepared its queso. In fact, the plaintiff argued that its temperature was the “quintessential issue of fact to be decided by the jury.” According to the court, the beef and queso were prepared separately (in a microwave) and then joined together as one after they individually reached 165 degrees Fahrenheit (and the parties apparently agreed that it was served at or near that temperature). The plaintiff’s expert testified that the restaurant created a dangerous condition by failing to serve the “excessively hot” queso at a cooler 135 degrees. (It is interesting that the court noted that the restaurant formerly served its hot appetizers at 155 degrees but raised that temperature by 10 degrees after certain customers complained.)

Finding the expert’s opinion unreliable and without a “discernible methodological basis,” the court cited his failure to distinguish the different properties of water and cheese:

[D]ifferent substances have different melting points, different boiling points, and different thermal properties. [The expert] provides no data regarding the temperature and length of exposure to melted cheese which will cause burns to the skin. There is no indication that [the expert] has the expertise to discuss the relationship between the thermal properties of water and beef queso dip, and his report does not include such a discussion.

Further, the expert apparently misinterpreted the Pennsylvania Food Code as requiring that the queso be served to the plaintiff at a temperature of 135 degrees. However, as the court observed, state law required 135 degrees only as a “minimum holding temperature to prevent microbe growth in foods served hot.” (Indeed, the court went on to suggest that holding temperatures exceeding 140 degrees are preferred for this purpose.). Thus, it was not correct for the expert to opine that a failure to serve it at 135 degrees created a dangerous condition. After noting the absence of industry standards cited by the expert and characterizing his opinions on the restaurant’s training duties as “essentially a lay-person’s opinion,” the court excluded his expert testimony outright.

In its motion for summary judgment, the restaurant argued that the negligence claim could not succeed because “the danger was obvious; an invitee must expect a hot appetizer will be served hot.”It is interesting that the complaint alleged that the hot appetizer was “apparent, open and visible to the defendants, and existed for a sufficient length of time . . . for the defendants to have had actual and constructive notice thereof.” However, as the court noted, most of the cases cited by the restaurant involved hot coffee or tea and the general proposition that a warning may be unnecessary when a hot item is anticipated. Finding the beverage cases distinguishable, the court noted that “because the beef queso dip is not a hot beverage, whether the danger of spilled beef queso dip would have been similarly open and obvious to a reasonable person is a question of fact for the jury.” (They apparently should have cited some hot cheese cases.) Ultimately, the court denied the summary judgment motion and observed that “if the jury finds that the beef queso dip posed an unexpected and not readily-discovered danger to Plaintiff, it will need to determine whether serving beef queso at an unexpectedly hot temperature, without a warning, was unreasonable.” PACER records indicate the case resolved two months later following a court-ordered settlement conference.

The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims – by Jim Dedman, American Bar Association News & Developments, November 27, 2013