Anecdotal descriptions of a few atypical lawsuits intended to shock or amuse the public have been the  cornerstone of the business community’s anti-jury advertising and public relations campaign since the 1980s. Focusing on a few rare, anecdotal cases, instead of the majority of cases that pass through the courts each year, feeds into a false and dangerous perception that the system is overflowing with frivolous lawsuits. Often such verdicts have either been thrown out or substantially reduced by trial judges or appellate courts, which is exactly how the system is supposed to work. Yet the public is given the false impression that a plaintiff received a windfall, a defendant was financially ruined, or the system failed. This is particularly irresponsible when, as is typical, cases are not cited by name or even by date so they can be checked for accuracy.  When journalists or researchers do track them down, they find in virtually every situation that such cases have been misreported and misused.

The “McDonald’s coffee” case. We have all heard it: a woman spills McDonald’s coffee, sues and gets $3 million. Here are the facts of this widely misreported and misunderstood case: Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson’s car having purchased a cup of McDonald’s coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. 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.  Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. However, McDonald’s refused to settle. The 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. (To put this in perspective, McDonald’s revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck’s attorney, S. Reed Morgan, the jury heard the following evidence in the case:¹

1. By corporate specifications, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit;
2. 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;
3. 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;
4. 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;
5. McDonald’s admitted that it has 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;
6. 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;
7. Not only men and women, but also children and infants, have been burned byMcDonald’s scalding hot coffee, in some instances due to inadvertent spillage byMcDonald’s employees;
8. 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;
9. Witnesses for McDonald’s admitted in court that consumers are unaware of the
   extent of the risk of serious burns from spilled coffee served at McDonald’s
   required temperature;
10. 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;
11. 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;”
12. McDonald’s admitted that its coffee is “not fit for consumption” when sold
    because it causes severe scalds if spilled or drunk;
13. Liebeck’s treating physician testified that her injury was one of the worst scald
    burns he had ever seen.

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.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald’s behavior “callous.”   Moreover, “the day after the verdict, the news media documented that coffee at the McDonald’s in Albuquerque [where Liebeck was burned] is now sold at 158 degrees.  This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict.”²

Irresponsible use of anecdotal cases by “tort reform” proponents is nothing new. The case of Charles Bigbee was the “McDonald’s coffee case” of the 1980s. Ronald Reagan described Bigbee’s case in a 1986 speech as follows: “In California, a man was using a public telephone booth to place a call. An alleged drunk driver careened down the street, lost control of his car, and crashed into a phone booth. Now, it’s no surprise that the injured man sued. But you might be startled to hear whom he sued: the telephone company and associated firms!” In fact, Bigbee’s leg was severed after a car hit the phone booth in which he had been trapped. The door jammed after he saw the car coming ‚ he tried to flee but could not. The accident left him unable to walk, severely depressed and unable to work. Because the phone company had placed the booth near a known hazardous intersection, and because the door was defective, keeping him trapped inside, he sued the phone company for compensation.³ Bigbee was brought to Congress to testify. He said, “I believe it would be very helpful if I could talk briefly about my case and show how it has been distorted not only by the President, but by the media as well. That is probably the best way to show that people who are injured due to the fault of others should be justly compensated for the damages they have to live with the rest of their lives.”⁴ Charles Bigbee died in 1994 at age 52.

NOTES
¹ Morgan, The Recorder, Sept. 30, 1994.
² Ibid.
³ Nader & Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996).
⁴ House Committee on Banking, Finance and Urban Affairs, July 23, 1986.

Reprinted with permission of  the Center for Justice & Democracy

By Keegan Federal

Most people know that a freshly poured cup of coffee is, or should be, hot.  Children learn early in their development that if you touch something hot, you will get burned.  So, without considering the true facts of the McDonald’s coffee case (Liebeck v McDonald’s), the public was quick to conclude that the risk that 79 year-old Stella Liebeck took, by putting a Styrofoam cup of hot coffee between her legs, was her own and the spill was her own fault.  Without all the facts, it is easy to see why the general public would find the case so emblematic of “frivolous lawsuits”.

But when you consider the risk Stella actually took, as opposed to the risk she thought she was taking by putting that particular cup of “hot” coffee between her legs, the picture changes.
 
Stella surely understood that she was taking a risk that she might spill the coffee, and certainly she could feel that the cup was “hot” and consequently knew that she was taking the risk that she might spill “hot” coffee on herself, and that it might hurt a bit.  But most, if not all of us, have similarly put “hot” drinks between our legs before, and we knew we were risking a spill and possibly even a burn.  However, most would agree that we and Stella were willing to risk getting only a slight burn, and none of us, including Stella, would knowingly risk a scalding, third-degree burn.  Feeling the cup is “hot” doesn’t inform us of just how hot the contents actually are, and we would naturally assume that the coffee is “normally” hot, not excessively hot, i.e., so hot as to cause a third-degree burn.

But the type of burn that Stella received wasn’t slight; it was severe; and it was precisely the temperature which caused the severe burns, not the spilling alone; and so the issue becomes who had actual knowledge of the potential danger posed by selling coffee at such an excessively high temperature? McDonald’s knew full well that the temperature of its coffee had been causing severe scalding burns throughout the country, but had refused to reduce the temperature.  Stella had no such knowledge, and no reason to believe that the coffee was so excessively hot that if she spilled it, she would not only be burned but also scalded to the extent that she would need skin grafts.  Stella did not realize and could not foresee that the coffee was not just “hot” but that it was scalding hot, and I believe that is why McDonald’s was correctly held liable for knowingly causing injury which it had foreseen.

As to why the public has pointed to that case to justify tort reform, lawyer jokes, and worse: it’s because the true and complete story was not included in the media reports of the case.  Perhaps it simply wasn’t “newsworthy” to report that a corporation had knowingly caused injury to a consumer (that happens every day).  Reporters knew that the story would get widespread acclaim if it was somehow shocking and could make it shocking by reporting only the incident and not the facts - ”lady wins millions by spilling hot coffee on herself”.  The media reports didn’t mention McDonald’s prior knowledge of injuries, or the excessive temperature of the coffee, or McDonald’s refusal to reduce the excessive temperature, or the severe burns, hospitalization, and skin grafts Stella endured, or that Stella originally sought recovery for only her medical expenses; and so on.

It has been my experience that when folks hear “the rest of the story”, especially the part about how McDonald’s had been on notice for some years that its coffee was causing scalding burns around the country but that they refused to reduce the temperature, as well as the full extent of Stella’s injuries, then they understand and even agree with the verdict.  In fact, most folks then conclude that she didn’t get nearly enough in compensation.  

By Michael Bennett

Rather than initially launching an all out assault, conducting war by using a slow, incremental wearing down of personnel and resources, military leaders throughout the ages have often used war of attrition as an effective method to defeat an enemy. Embargos, isolation, freezing of assets, periodic bombardment of strategic areas are some of the tactics that are used in this military strategy.

During World War II, General Douglas MacArthur employed these tactics against the island fortress of Rabaul, where the combined forces of Imperial Japan had amassed huge quantities of armaments, war planes and supplies. It was a strategy that proved successful in defeating an enemy of far superior numerical and material strength.

The history, strategy and tactics of the tort “reform” movement are strikingly similar to a classic war of attrition.

On the heels of the Vietnam War and its associated widespread violent protests, the Civil Rights Movement, the “Pill”, Valium, and the Iranian hostage crisis, America was ripe for a rightward swing of the political pendulum.

In 1980, Ronald Reagan was elected President, in part, by promoting a concept of “personal responsibility”.

The concept could not be easily dismissed as mere rhetoric or partisan political propaganda. Accountability is a fundamental individual and societal concept to most Americans. And after all, it was JFK who said: “Ask not what your country can do for you; ask what you can do for your country.”

With George Bush the 1st, and Vice President Dan Quayle leading the charge, the “personal responsibility” slogan morphed into the “tort reform” movement and became a major plank of the Republican Party’s platform.

Seeing the obvious, big insurance, big “Pharma”, big tobacco and big medicine lost no time and spared no effort in supporting the Republican agenda. A number of individuals seized the opportunity to further their already long-time financial interests by forming “grass-roots” groups which received significant support from these massive corporations.

The axis had thus been formed and the war against victims and plaintiffs attorneys was clearly underway.

Like most wars, the strategy of the tort “reform” movement began with the identification and subsequent demonizing of the “enemy”.

Victims of professional malpractice were drawn into caricatures of corrupt, hapless and lazy people looking to unjustly blame someone for their troubles while aiming to get rich from the deep-pockets of the lifesaving pharmaceutical and innocent insurance companies.

Supposedly, masses of these opportunistic loafers were lining-up to get undeserved compensation for contrived injuries through a system that was being hugely exploited by trial lawyers. This, the “personal responsibility” folks turned tort “reformers” said, was wrecking the entire medico-economic system and creating a crisis of access to medical care.

Although the campaign to portray victims of medical negligence in such an odious light continued, the tort “reformers” understood that only so much mileage could be gained from this tactic. The public, to a large extent, would continue to hold a sympathetic view of victims and so the main target of the “reformers” attacks became the trial lawyers.

The “reformers” exploited an age-old portrayal of lawyers as greedy and shrewd “shylocks”. This grotesque characterization of the members of an honorable profession is reminiscent of the dastardly work of infamous propagandists from nefarious regimes who used the same technique prior to initiating attacks on their enemies.

To Americans, whose view of medicine was greatly influenced by such fatherly and beneficent images such as “Marcus Welby, MD”, and most of whom had little, if any, exposure to the justice system as victims of medical negligence, the demonization strategy found fertile ground in the American psyche and the tort “reform” movement gained momentum.

By creating greater distances between victims and their only advocates-plaintiff attorneys- the tort reformers intended to reduce negligence lawsuits by limiting victims’ access to the court house.

Understanding that most victims do not have the financial resources needed to pay for expensive and protracted litigation, and therefore the contingency system being the only vehicle by which they can hope to gain access to the court house, the reformers launched a campaign aimed at reducing victims’ compensation through legislation. By imposing arbitrary caps on “non-economic” damages, the tort reformers hoped to reduce the volume of negligence cases by forcing attorneys to limit their cases to the most egregious and therefore the most profitable ones. In other words; through attrition, reduce malpractice lawsuits by effectively denying entrée to the courts for the moderately and minimally injured, the poor and the elderly, and others whose cases would not generate large settlements or judgments.

Knowing that even clearly negligent doctors, healthcare workers or institutions can easily draw from vast reservoirs of potential experts, while victims’ advocates face the daunting task of finding experts who are willing to criticize their associates and potentially incur being ostracized or worse, the reformers moved to further limit victims’ access to justice by steadily and incrementally increasing the burden on victims through more and more unreasonable restrictions on expert witnesses that effectively only applied to plaintiff attorneys. The intended effect of these restrictions was to even further limit victims’ access to the courts.

While the eight years of the Clinton Administration provided some relief from the attacks of the tort reformers, the election of George Bush the 2nd renewed, with vigor, the campaign against victims of medical negligence and plaintiff attorneys.

Using a bevy of tactics, such as mandatory arbitration, “apology” laws, more extensive filing regulations, venue restrictions, limiting attorney fees, a stepped-up campaign of propaganda about “frivolous lawsuits”, “runaway jury awards”, mandatory structured settlements, the costs of “defensive medicine” and the Machiavellian ruse that doctors were leaving the professions, etc., the reformers launched a multi-faceted “strategic bombing” intended to even further isolate victims, denying yet more and more victims’ access to justice, and to poison the jury pool.

Ironically, by sewing a culture of fear, the tort reform movement itself has done more to promote “defensive medicine” than anything victims or their advocates could have done.

Despite the multiplicity of “reforms” that have been enacted in many states and strong evidence that these have had no appreciable effect on either malpractice insurance rates or access to medical care, the tort reform movement is now engaged in attempting to deny victims any and all access to the jury system through the establishment of “Health Courts”.

A euphemism for undermining the constitutional right to a jury trial, so called “Health Courts” would force victims, who live in anguish and grief and who crave for justice, into a forum designed and influenced by people from the very industry that has made them victims.

Another shrewd device being promoted by those who are liable for causing injury and death is the so called “3R’s” program.

Recently initiated by the Colorado- based Copic Insurance Company, the “3R’s” stands for “Recognize, Respond and Resolve”. Similar to the “Sorry Works” campaign, the “3R’s” is designed to disarm victims by offering them recognition that they are indeed victims and free medical care for their sustained injuries in exchange for waving their right to seek judicial remedy. The strategy is that victims will opt for the “sure thing” rather than risk loosing all by going to court.

 Reprinted with permission of the author.  Michael Bennett is president of The Coalition For Patients’ Rights.  View the original article here.

By Paul Ford - InjuryBoard.com

I recently attended a legal seminar and heard Ken Connor, an attorney from Florida, speak. Ken is a conservative trial lawyer. And his perspective on tort reform and people of conservative ideology was extremely insightful. I have thought about his message many times and have come to conclude that conservatives are being sold a bill of goods on the subject of tort reform; and in fact, are departing from traditional conservative values when supporting Tort Reform.

Conservatives believe that the government closest to the people serves the people best. Thomas Jefferson established this core value and conservatives to this day hold to its truth. Conservatives do not want politicians and bureaucrats in Washington, D.C. or their state capitol making decisions that control their local school board. Conservatives believe that the size of government makes it subject to inefficiency, and even corruption. Money buys influence. Yet, in the support of tort reform, one must be willing to allow politicians, who are swayed by lobbyists, to determine that tort claims should be capped, for example, at $250,000. Yet the politicians know nothing about the particular case. This is a prime example of a government that is not serving its people, but instead is being influenced by the desire to control costs and increase profits.
Furthermore, conservatives believe that money is a motivator and that accountability leads to responsibility. Many conservatives will agree that society sets rules and that those who violate those rules should be held accountable and required to pay the damages caused by the violation of society's rules. Yet the core premise behind tort reform is to limit the amount one must pay, despite the true damage caused. That does not promote accountability. It destroys it.

Many conservatives, when asked, will tell you that if you do not punish bad behavior, you get more of it. Many conservatives believe in spanking their kids to teach them not to do the wrong thing. They believe that if you do not punish in proper relation to the extent of the wrong doing that you send the wrong message. That is exactly why tort reform sends the wrong message. Particularly when it comes to an artificial damage cap determined by politicians. It sends the message that no matter how wrong your behavior is and no matter how much damage is causes, you will only have to pay so much. That is a free pass and it promotes wrong behavior.

It certainly does not promote accountability and responsibility.

So, I encourage conservatives to consider the true impact of tort reform. It allows corporations to use their financial influence in the political arena to promote their own selfish agenda. Turn on the television, pick up a newspaper, or read online; and when you do so, the overwhelming truth is that [some] companies will stop at nothing to make a profit. In fact, many will argue that the current financial crisis is brought on by corporate greed. Unregulated corporate greed. And tort reform is nothing more than another example of corporations seeking to be protected from regulation....protected from the voice of the people....the voice of a jury.

(c) 2009 InjuryBoard.com  - View the original post at http://jonesboro.injuryboard.com/miscellaneous/tort-reform-why-conservatives-should-oppose-it.aspx?googleid=262440

Attorney General Withdraws Bush Administration Ruling Denying Immigrants Protection From Lawyers' Mistakes

WASHINGTON – June 3, 2009  In a major step towards restoring key legal protections for immigrants facing deportation, Attorney General Eric Holder today withdrew a last-minute Bush administration order that severely restricted the right of immigrants to reopen immigration cases lost because of their lawyers' mistakes. Holder also stated that he will review the problem of "ineffective assistance" in immigration proceedings to determine whether additional protections are necessary.