Hot Tea: Expert “Clearly Outside” Expertise, Fails Daubert

When an expert fails a Daubert challenge, the failure may tarnish the expert's reputation, but much of the fault, more often than not, lies on the shoulders of the attorney who fails to fully vet the expert.

In Maneri v. Starbucks Corporation Store #15627 (E.D. Pa., paed-2:2017-cv-03881, Oct. 31, 2019), Karen Maneri sued Starbucks for negligence, product liability, and breach of warranty for serving hot tea which burned her skin. She had purchased the tea at a Stabucks's drive-thru window, and then drove home. As she turned into the driveway, the lid popped off her cup which was in her car's built-in cupholder. The tea spilled on her leg, causing severe burns.

To support her claim, Maneri retained Jeffrey C. Lolli, Ed.D, CHE, CHIA, an Associate Professor in Hospitality Management, and an undisputed Hotel and Restaurant expert witness with over 20 years' experience in the hospitality industry, holding management and supervisory positions in large hotels and casinos (eg: Wyndham Hotels, Sands Casino Hotel and Harrahs Entertainment). He also held a certificate in food safety.

Lolli found that that the tea was “too hot” by industry standards. He supported his conclusion of the too-hot tea by referencing Starbucks' manual for brewing the tea at between 190°F and 200°F, The Beverage Manager's Guide to Wines, Beers and Spirits which requires brewing teas at 190° — 200°F, a Keurig manual for brewing at 192°F, and an article finding that people prefer coffee brewed at 140°F +/- 15°F. Additionally, Lolli cited the Burn Foundation which sets the temperature that skin will start to burn at 133°F to 156°F, depending on the time on the skin, and he noted that the machine that dispensed the hot water for the tea had not been calibrated.

Lolli also supported his opinion that Starbucks failed to follow industry standards in finding that company employees had “doubled cupped” Maneri's tea, while the company's operating procedures indicated that double cupping was not necessary for the size tea Maneri ordered. This double cupping not only showed that the tea was too hot, it also prevented the lid from being secured properly.

He contended that Maneri's actions did not contribute to the injury. Her turning into the driveway “in no way contributed to the dislodging of the lid of the cup.” Lolli provided measurements of the cup holder in Maneri's car and concluded that it was a “snug” fit as he could barely fit his index finger between the cup and cup holder. He opined that he “pushed from all sides” on the cup and the lid did not pop off. The only way the lid could pop off, he concluded, was if it had never been securely fastened to begin with.

Starbucks moved to exclude the testimony, arguing that Lolli referenced no materials establishing an industry standard for tea temperature and did not “connect his opinions to any specialized training or knowledge regarding relevant standards.” Starbucks argued as well that Lolli failed to reference any standard requiring calibration of a hot water dispenser.

Starbucks' store partners, with experience as baristas, testified that they always used double cups (despite operational policy). One displayed as evidence an example double cup, showing that the distance between the rims of the cups was large enough there would be no affect on how the lid was placed. A partner also testified that the policy of not using a second cup was to reduce waste.

The district court agreed with Starbucks, finding that Lolli's opinions failed to meet the Daubert standard. Even if Lolli had establish an industry standard for tea brewing temperature (which the court found he had not), Lolli's documents show that tea should be brewed hot enough to burn skin.

As well, the court found that Lolli offered no evidence of any industry standard or protocol regarding calibration of the hot water dispenser, and “[his] opinion that double-cupping prevented the lid from being secured properly is also not connected at all to his training or any industry standard.” The court found that Lolli referenced no test he conducted to determine if double cupping prevented the lid from being secured, or any methodology to support that conclusion.

As for Lolli's opinion that turning into the driveway was not a contributory factor, the court found that his “test” was “not technical or able to be repeated in any meaningful way.” Lolli had no “specialized skills or knowledge which enables him to conduct such a ‘test'.” It was “clearly outside of his area of expertise.”

The court found that Lolli's opinions were those that lay persons on the jury could judge without the need for an expert. Rejecting Lolli's expert testimony, the court granted Starbucks' summary judgment motion.

Curious of course is why Maneri's attorney, Christian J. Hoey, who has over 25 years of experience, would fail to fully vet Lolli — perhaps related to Hoey studying law at Widener University, where Lolli is an Associate Professor.