In Defense of Frivolous Law Suits
Mon Jan 10, 2005 at 11:56:40 AM PDT
Tort "reform" is all the rage these days. Everywhere I turn, I see editorials, commentators, newscasters (unfortunately), and politicians towing the same line: the legal system in this country has run amok, juries are out of control! Jury damages have to be capped, limited, brought back to earth! Of course, this is all the work of greedy trial lawyers and their co-horts in the Democratic Party. Of course they don't want tort reform--that's how they all got rich!!!!
Well, I'm a trial lawyer, too, and I'm not rich. I'm a public interest lawyer, and people would be shocked at how little I make. Of course, the posterchild for the tort reform movement is (all together now) the McDonald's coffee case. While almost everyone knows about the case, too few people know the actual facts of the case. So, by way of example, here's my case against tort reform.
The Real Story of the McDonald's Coffee Case (or How I Learned to Stop Worrying and Love Litigation) below the fold.
In 1992, 79-year old Stella Liebeck was riding in a car driven by her grandson. After purchasing a cup of coffee at McDonald's, they pulled over and stopped the car. Liebeck tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. The sweatpants she was wearing absorbed the coffee and held it against her skin. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Despite her serious injuries, McDonald's refused to settle the case, even though Liebeck only sought $20,000 in damages. After trial, a jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct.
That's the part of the story the general public heard. Here's what the jury heard that tort reform proponents don't want the public to know about:
McDonalds said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds. Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years. McDonald's admitted that it had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees. Moreover, the Shriner's Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.
From 1982 to 1992, McDonald's coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks. Not only men and women, but also children and infants, have been burned by McDonald's scalding hot coffee, in some instances due to inadvertent spillage by McDonald's employees. At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years.
McDonald's admitted that it had known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail. McDonald's admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.
McDonald's witnesses testified that it did not intend to turn down the heat -- As one witness put it: "No, there is no current plan to change the procedure that we're using in that regard right now;"
The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation.
McDonald's admitted that its coffee was "not fit for consumption" when sold because it caused severe scalds if spilled or drunk.
Liebeck's treating physician testified that her injury was one of the worst scald burns he had ever seen.
In the end, the $2.7 million that the jury awarded Liebeck was the equivalent of two days' worth of coffee revenue for McDonald's.
An invesitgation following the verdict found that the termperature of coffee at the ocal Albuquerque McDonalds had dropped to 158 degrees fahrenheit.
The True Story of the Coffee Case
Sometimes (often, in fact) lawsuits are not about money. They are about deterants--and about making people whole. Rather than just looking at the amount of the jury's verdict--$200K plus $2.7 million--we need to look at the verdict the way the jury intended it. $200k to make the victim whole again--pain and suffering plus damages plus her medical expenses (past and future). The $2.7 million is a different animal altogether. The jury was charged with setting a punitive damage amount that would serve to deter McDonald's for conduct that the jury found "callous" and unreasonable. What amount would be large enough to deter a corporate giant like McDonald's? Would $100k, Shrub's favorite number for tort reform, really have been enough? Anyone who has ever been to law school is aware of the "smoking memo" in the Ford Pinto case, where Ford determined that it was cheaper just to pay damages to the victims of the Pinto fires than it was to actually fix the cars and make them safe.
Besides, the current "crisis" in the medical field is an overblown creation of the right and the insurance companies lobbying it. From the Common Sense Foundation in NC:
The tort reform movement has caught fire around the country, fueled by panicked claims of doctors leaving most states in huge numbers. According to tort reform advocates, the reason for the insurance crisis is runaway jury awards in medical malpractice cases. The theory is that these supposedly frivolous lawsuits are driving everyone's premium costs way, way up.
But increasingly, states that tackle the tort reform issue are finding that there's nothing to these claims of catastrophe.
Last month in Florida, the state Senate Judiciary Committee held extraordinary hearings in which it compelled top-level representatives of the insurance industry and medical profession to testify under oath about the "crisis" in Florida. Under penalty of perjury, these experts admitted that doctors are not leaving the state; frivolous lawsuits are not increasing; and the state's primary medical malpractice insurer is making big profits.
And a study published this year by a University of Buffalo professor showed that caps on non-economic damages in medical malpractice lawsuits have an unfair impact on women and the elderly, since those groups are likely to receive smaller amounts in compensation for economic losses than would working-age men.
There are two tragedies unfolding here: one is that practitioners of one of society's most noble professions are being largely co-opted by huge corporate interests that want the government to guarantee their profit margins through "reform" legislation. The other is that tort reform would severely limit the right of injured parties to have their day in court.
Right now the evidence is strongly in favor of those who oppose caps on non-economic damages in medical malpractice lawsuits. If the N.C. Senate carefully examines that evidence, maybe it will go a step further and figure out just what it is that is driving up rates for malpractice insurance here. Maybe they'll look at the insurance companies' financial reports to see if they're price-gouging to make up for depressed investment income, for example. Or maybe they'll examine how the medical profession disciplines doctors who have multiple malpractice claims filed against them.
Common Sense Foundation
The sad fact of life is that corporations more often than not make decision based on the bottom line, not basic human decency or morality. Doctor's sometimes make mistakes that damages people for life. Capping victim's damages to what amounts to pocket change for a large corporation is only one more step to making corporations completely immune from the damage they sometimes cause in consumers' lives.
*PLEASE IGNORE THE FOLLOWING POLL. THE FORMATTING GOT ALL MESSED UP AND IT WON'T LET ME DELETE IT*
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