Cookie Monster

Cookie monster: The 1994 case is infamous. An 81-year-old New Mexico woman spills hot coffee on herself at a McDonald's drive-through and sues the chain, winning a $2.9 million judgment from a jury and making herself the instant national poster-granny for the cause of tort reform. Though a judge reduced the award and the case later settled, it was to many a galling example of a legal system run amok.

But it could have been worse. The woman could have had a cookie with her coffee.

For nearly a decade, Dallas courts have quietly chewed on a case that could rival the coffee controversy in the annals of bizarre litigation. It concerns an errant raisin stem found in--gasp!--a raisin cookie. (Coffee's hot. Raisins have stems. Is nowhere safe?) The case began in November 1991, when Nancy Blakely bought a seemingly ordinary Otis Spunkmeyer cookie and made her first big mistake, in Buzz's opinion. Those things are loaded with fat, and we believe it's generally not a good idea to eat anything with spunk in its name.

When Blakely bit into the raisin stem, it activated a painful condition in her jaw called temporomandibular joint dysfunction, which occurs when bones rub against each other.

Blakely, who had received three previous surgeries for a broken mandible that was caused by things not cookie-related, eventually underwent complete joint-replacement surgery. She also sued Oklahoma City-based Otis Spunkmeyer Cookies Inc. but lost her case in 1997.

Then the improbable occurred: Alleging negligence, she won a new trial and won the case--and more than $100,000--when a judge changed the jury's instructions at the last minute, ordering them to consider whether the cookie caused Blakely's TMJ symptoms, rather than the TMJ itself. (You might think that TMJ caused the symptoms, and that the question should have been what caused the TMJ, but you're not a lawyer, so shut up.)

Bill Hart, a Dallas-based attorney for Otis Spunkmeyer, is still in shock over the jury's finding against the company; he claims the jury was ready to rule in his favor until the judge amended their instructions. Nevertheless, the Texas Court of Appeals on November 1 threw out that judgment and ordered a third trial, citing contradictory responses to questions posed to their jury. (While the jury agreed a manufacturing defect didn't cause Blakely's injury, it also agreed the cookie dough was defective and thus caused the jaw injury.)

Blakely's attorney, Charles Wilson III, didn't return a call. If Blakely doesn't appeal the Appeals Court decision, another trial could occur in the next few months. Meanwhile, with a new judge at the 95th District Court, Hart is certain he'll win this time around. "[Wilson] doesn't want another trial because he basically lost twice," he says. "He just got lucky with the judge he had."

But he admits his client, which licenses cookie franchises nationwide, is so weary of the dispute that it's mulling a settlement.

Buzz has been just riveted by the drama unfolding in Florida for the past--what is it now?--30 or 40 weeks. Yep, we've been glued to waiting to know the answer to that all-important question: Has George W. Bush ever heard of Clearasil?

Not to pick on Dubya's zits (rim shot), but Buzz has been scanning the databanks trying to find out which news organization broke the story of Bush's inflamed boil.

Time magazine and The New Yorker were the first to deliver the graphic details. Both rags made sure to include prominently in their coverage of the post-election battle the condition of the Texas governor's boil-marked mug. Time went so far as to query "cosmetic experts" on how the governor could better conceal the blemish. The New Yorker will soon match that with a clever, obscure, and entirely unfunny cartoon featuring an upper-middle-class man talking to an upper-middle-class woman. One will have a boil.

That's not to say we're ungrateful to our fellow members of the press. Folks like to know them things, after all. Besides, we're frankly getting a little worried about our comrades in Austin. We've seen recent press pool reports, and it sounds grim. (Pool reporters are chosen to cover crowded events and share detailed notes with other journalists.) Judging by what we've seen, if something substantial doesn't break soon, they may revert to cannibalism.

Take, for instance, this dispatch from Frank Bruni of The New York Times on Bush's first appearance of the day on November 20:

"The governor first espied John Berman of ABC News...The governor's first words are lodged forever in my memory.

"'Berman,' he said. 'How are you?'

"Then the governor noticed something different and disconcerting about Mr. Berman--something that hinted at the long, grueling, redundant, depressing vigil of the reporters and producers and photographers around Austin. For at least 36 and possibly 48 to 72 hours, Mr. Berman had not come anywhere near a razor. He had not, from the looks of things, even been in the same time zone as one."

"But where other observers might have seen, on Mr. Berman's cheeks and jowls, follicular decrepitude and hirsute disrepair, Mr. Bush saw something else. An optimist, he saw the seeds and stalks of new growth," Bruni wrote.

"'I like the beard,' he said, still loping, never breaking stride, several bodyguards around him. 'Very stylish.'

"The governor himself was clean-shaven...there was not an adhesive bandage anywhere on his face."

The reports tend to drift downhill from there, so please, let's end this nightmare and send our boys and girls home before things turn Lord of the Flies ugly.

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Patrick Williams is editor-in-chief of the Dallas Observer.
Contact: Patrick Williams

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