Three years ago, a woman who worked at the Steak ’n Shake in Florissant thought she saw worms in a hamburger patty. The woman, Melissa White, was a server who had been cooking the patty for her own meal. She later testified that she perceived something moving in the patty.
White immediately showed the patty to her managers, and urged them to call the health department. But they said to wait so they could inspect it first. When her district manager finally arrived, White refused to turn over the patty. She said she was taking it to the health department.
White left the restaurant with the patty, and in tears. On the way out, she told customers she was fired for reporting worms in the meat. Steak ’n Shake said she quit rather than turn over the patty.
Then White took to Facebook. She posted in all caps, “JUST GOT FIRED FROM STEAK N SHAKE IN FLORISSANT ON FLORISSANT AND LINDBERGH ROAD BECAUSE I FOUND LIVE WORMS WHILE COOKING A STEAKPATTY MOVING INSIDE OF IT AND REFUSED TO SELL THAT MEAT ... WELL RIGHT NOW THEY ARE STILL SELLING SAME MEAT #NOONEEVENCHECKEDIT.”
The post went viral, with 36,000 shares in just two weeks. Steak ’n Shake sued her for defamation.
And earlier this month, they won, with a federal jury awarding the company $70,000 in actual damages and another $10,000 in punitive damages. Melissa White has said the judgment could bankrupt her.
The case kicked off Wednesday’s St. Louis on the Air Legal Roundtable. And the three attorneys agreed it represents a cautionary tale.
“This judgement will send a chilling effect to all of us, and make all of us think twice before we fire off a Facebook post or post something on Instagram or Twitter,” said Connie McFarland-Butler, who runs a full service law firm under her own name in Florissant. “There were things she wrote in this post that were reckless, and if you read the legal file, it appears to contradict the facts in this case.”
In her defense, White claimed she was a whistleblower. Mark Smith, an attorney who serves as a vice chancellor at Washington University, said that under Missouri law, she would have had to report wrongdoing to the “proper authorities.” If the alleged wrongdoers were her managers, for failing to deal with wormy meat, she couldn’t just complain to them (or customers).
“She would have to show she was going outside,” Smith said. “Here, she reported it [only] to internal Steak ’n Shake employees.”
White testified that, after leaving the restaurant, she kept the burger in her own freezer. After being sued, she engaged an expert, who identified maggots in it, court records show. But that was 11 months later; the jury would have had to trust her assertions that she stored it safely the whole time. Said Nicole Gorovsky, an attorney at Gorovsky Law LLC, “The jury must have decided that she couldn’t prove that.”
But McFarland-Butler noted that even if the patty had maggots, White could be in legal trouble. “Ms. White made at least four factual assertions in that post,” she said — including that the patty was served to customers, which the woman’s own testimony didn’t support. “And there’s no indication that burger was ever cooked for public consumption, or that any of the managers attempted to force her to sell it.”
And White erred, the lawyers agreed, by doubling down.
Gorovsky noted that the company asked White to take the post down. It also attempted to post the health department’s report in response to her allegations. The post was still live at the point the company filed suit against her.
The company initially filed suit in part to force its takedown. Said McFarland-Butler, “If you look at the amount of times the post was liked and it was shared, the company had to get on top of it before the horse completely left the gate.”
“She leaves her employer, and writes this thing in anger, which you don’t want to do, whether it’s an email to your friends or whatever, it’s a bad idea,” added Smith. “And then she refused to take it down. And I think that was probably her biggest mistake.”
The panel also discussed a Cole County Circuit Court judge’s ruling that the ballot initiative mandating Medicaid expansion in Missouri is unconstitutional, the lawsuit filed by St. Louis and St. Louis County against the state’s attempt to invalidate federal gun laws and the recent plea deal for Mark and Patricia McCloskey.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. Paola Rodriguez is our production assistant. The audio engineer is Aaron Doerr.
Flickr photo by Kent Kanouse
