MCDONALD HOAX CASE IS LARGEST PI TRIAL IN 2007 STARTS SEPT. 10TH.
-an 18-year-old high school senior making was subject to the cruelest of hoaxes — accused by a caller of theft, then detained, stripped and sexually humiliated for hours in the restaurant office. McDonalds apparently knew of many similar hoaxes -
A trial expected to last two weeks, and with 100 witnesses on the witness lists begins in Bullitt Circuit Court Monday Sept. 10th. Ann Oldfather is taking on McDonalds Corporation and alleges they were aware of as many as 44 other hoax calls but did not warn employees. This case may result is a verdict in the hundreds of millions of dollars. Judge McDonald, sanctioned the defendant for withholding discovery but did not strike their answer.
The Courier Journal in an excellent article by Andy Wolfson details the issues:
By Andrew Wolfson Courier Journal Sept. 9, 2007
Three years ago, in a case that eventually drew national attention to Bullitt County, Ky., an 18-year-old high school senior making $6.35 an hour at McDonald’s was subject to the cruelest of hoaxes — accused by a caller of theft, then detained, stripped and sexually humiliated for hours in the restaurant office.
Two others, also duped by the hoax, were convicted of crimes, though a jury acquitted the man police charged with orchestrating the entire thing.
Now, a jury will decide what price — if any — the $59 billion McDonald’s Corp. should pay for Louise Ogborn’s degrading ordeal.
In a fiercely litigated lawsuit scheduled to go to trial tomorrow, Ogborn will ask a Bullitt Circuit Court jury to make the company pay her more than $200 million — including $100 million in punitive damages — for failing to warn her and other employees about a hoax caller who had already struck 32 other McDonald’s stores and as many as 130 other fast-food restaurants and retail stores across the nation.
It is believed to be the first such suit to go to trial; the rest were settled.
McDonald’s says it’s not to blame and that the real culprits include the caller — and Ogborn herself.
The trial is expected to take four weeks. Stacked one atop the other, the pleadings in the case — 815 documents in 35 volumes — would stand 10 feet tall, twice the height of Ogborn herself.
“It is an interesting collision of forces going to battle over a bizarre set of facts,” said William McMurry, the Louisville lawyer who helped win a $25.7 million settlement in sex-abuse cases against the Archdiocese of Louisville.
“There is no middle ground,” he said. “It will be either a zero verdict for the plaintiff or a gazillion dollars. I have never seen as sensational a case as this, with so much to lose on both sides.”
Lawyers have taken 57 depositions from more than 40 witnesses, and each side lists more than 80 people it might call to the stand.
McDonald’s has retained eight expert witnesses in fields as diverse as psychiatry, probability, corporate security and human behavior, and it will employ two major law firms in its defense.
The principal antagonists are two of Kentucky’s leading trial attorneys, Ann Oldfather for Ogborn and W.R. “Pat” Patterson for McDonald’s.Ogborn, claiming she is wracked by fear and depression, is seeking compensation for her lost enjoyment of life and an expected lifetime of therapy and medication costs. A psychiatrist, hired last year by her attorneys, said her symptoms were worse than the typical rape victim’s.
But McDonald’s points the finger at other parties, starting with the caller himself and Walter Wes Nix Jr., who at one point was called in to the restaurant to watch Ogborn, then forced her to do calisthenics in the nude and to sodomize him, spanking her when she disobeyed — all at the caller’s behest.
The company also blames McDonald’s assistant manager Donna Summers, and Ogborn, for violating a written policy in the company’s 750-page manual that prohibits strip searches.
“It was not McDonald’s that was negligent,” the company says in court papers, “but instead Summers and Ogborn.”
The case has been featured on ABC Primetime, MSNBC and Court TV, and to limit further publicity, Senior Judge Tom McDonald has forbid the parties and their lawyers from talking to the press.
Citing the gag order, Oldfather declined to comment on whether Ogborn, 21, is now in school or employed, or whether she still lives in the area. Lawyers for McDonald’s also said they couldn’t comment.
But attorneys who aren’t involved in the case say both sides must make some high-stakes decisions as the trial opens this week.
McDonald’s must decide how vigorously to attack Ogborn — and whether to suggest she may have been in collusion with the caller, lawyers say.
That strategy worked for the defense last year in the criminal trial of David R. Stewart, the ex-prison guard from the Florida panhandle who was charged with calling the Mount Washington restaurant. A Bullitt County jury acquitted him on charges that included impersonating a police officer.
Louisville trial lawyer Gary Weiss said it would be “suicide” for McDonald’s to suggest that Ogborn was in cahoots with Stewart, because of the risk of a jury backlash. “It would throw fuel on the fire,” he said.
Patterson said in court last week that he doesn’t think Ogborn was lying, but in pleadings the company has suggested it might offer that as a defense.
Weiss and other lawyers, including Chicago attorney Craig Annunziata, said McDonald’s instead should try to persuade jurors that the incident was so bizarre it couldn’t be foreseen — and to focus the jury’s wrath on the caller.
“You had a sophisticated criminal mind who manipulated everybody,” Annunziata said.
Oldfather has her own challenges, Weiss and other lawyers say — chiefly to explain why her client “didn’t just leave.”
“That is something the jury will talk about,” Weiss said, although Oldfather will note that Ogborn’s clothes and car keys had been taken away, and Nix was twice her size, making it implausible for her to flee.
Attorney Steve Romines, who won the acquittal for Stewart, said Oldfather will also have to explain why her client — then represented by another lawyer — granted interviews to The Courier-Journal and ABC Primetime if she was so traumatized by the events.
“It’s hard to argue you were embarrassed when you did most of the publicizing,” Romines said.
Ogborn has sued McDonald’s on 11 grounds, including failure to train, failure to warn, assault and battery and sexual harassment.
She also names as defendants Summers and another assistant manager, Kim Dockery, who was on duty at the time of the search and assisted Summers.
Summers, who was convicted of unlawfully imprisoning Ogborn, has filed her own claim against McDonald’s, saying the incident wouldn’t have happened if the company had warned her and other managers about the previous hoaxes. Summers is asking for $50 million in damages; her claim will be presented along with Ogborn’s at trial.
She and Ogborn are both expected to try to show that McDonald’s knew the hoax caller had already hit McDonald’s stores from Spearfish, N.D., to Skowhegan, Maine, before calling the Mount Washington restaurant on April 9, 2004.
In fact, by that date, they say, McDonald’s was already defending itself in six lawsuits related to such hoaxes.
Citing the admissions of McDonald’s executives, they will try to show that the company never told line employees about the hoaxes or trained managers on the subject at its corporate headquarters in Oak Brook, Ill.
If McDonald’s had offered instructions as detailed as it does for making french fries, one of Ogborn’s experts, UCLA psychology professor emeritus Barry Collins has said, “the Mount Washington tragedy could have been avoided.”
McDonald’s will try to prove at trial that Ogborn was on duty — which could block her suit under Kentucky worker’s compensation law, which generally prohibits workers from suing their employers.
The company is also expected to try to show that the company had no responsibility for Nix, who Summers invited to the store; he was, at that time, her boyfriend. The company will also argue that Summers violated a company policy that allows only employees behind the counter; by doing that, the company contends, she was acting outside the scope of her employment, shielding McDonald’s from liability.
McDonald’s is also expected to claim that despite the previous hoax calls, the odds that the Mount Washington store would be targeted were “infinitesimal — 0.0000004 percent,” based on its 14,000 stores in the United States.
Even if it had warned the Mount Washington employees, the company will further contend, there is no guarantee that they still wouldn’t have fallen for the hoax. For example, a Wendy’s manager was duped shortly after reading a memo warning about the scams, according to one of McDonald’s experts.
“There is no way you can train every restaurant employee on every conceivable event,” McDonald’s security expert Steven Millwee has testified in a deposition.
To reduce potential damages, McDonald’s will likely point to Ogborn’s postings on her MySpace page after the incident, in which she said she was doing OK and even happy.
Flurry of motions
With the stakes so high, both sides have tried to exercise damage control.
For example, McDonald’s has filed 28 motions to bar evidence that might “arouse the jury’s sense of horror” or “provoke the instinct to punish.”
The company said in a motion that it doesn’t want Oldfather alleging that it “cares more about profits than people,” or mentioning how much money it made last year — $21.6 billion in revenues and $3.5 billion in profits.
It also doesn’t want any reference to other hoaxes, which it says will only “confuse the jury,” or any mention that Ogborn took the job to help her sick mother or her father, who’d been laid off from his truck-driving job. (Judge McDonald barred mention of the company’s profits but denied the other two motions.)
Oldfather, for her part, wants to keep McDonald’s from suggesting that Ogborn was in league with the caller; or from saying that her client is trying to “hit the lottery.” (The judge denied the first request but granted the second.)
How much could the case be worth?
No one — except perhaps McDonald’s — knows for sure, because the other cases were settled for confidential amounts.
Veteran Bullitt County lawyer John Spainhour noted that a Bullitt jury has never returned a large award in any personal injury case. The largest Bullitt verdict of any kind in the past 10 years was $229,507, for a plaintiff in an uninsured motorist case, according to the Kentucky Trial Court Review.
Spainhour also said that the jury in Stewart’s criminal trial “certainly didn’t think much” of Ogborn’s story.”
But McMurry said that the $200 million in damages sought by Ogborn is “not even a blip on McDonald’s financial statement.
“This kind of event can destroy a woman’s ability to move on with her life,” McMurry said. “If McDonald’s does a bad job handling her, and the jury believes she was an innocent victim, you can back up the truck, and load on the money.”