Tort Reform: Fueled by Disinformation and Hypocrisy

People who want to take your rights away depend primarily this supposition: America is full of useful idiots.

Exacerbating this problem is TV news, which is exactly as informative as a cartoon strip. Speaking of cartoon strips: Newspapers, the last bastion of actual journalism, continue to die. If not resuscitated soon, you won’t be able to line your cat box with them, let alone read a new edition.

If being un- or mal-informed hurt only one’s chances at winning trivia night at the local bar, that might be tolerable. The problem is that not understanding and misunderstanding issues changes how we think, act, and vote on important matters. And it’s killing us.

There is no better example than “tort reform.” How many times have you overheard this conversation: “Everybody these days just wants to sue everybody. You spill hot coffee on yourself, that’s your fault! I mean, what did that unelected, liberal judge give that lady, $20 million? Because she spilled coffee on herself? Give me a break! Coffee’s supposed to be hot! Believe you me, Billy Bob: Country’s goin’ to hell in a handbasket.”

The case that the uninformed rube is talking about is Liebeck v. McDonald’s Restaurants. And my, is he wrong. Here’s the actual facts:

An 80-year-old woman, Stella Liebeck, is in the passenger seat of car in McDonald’s drive-thru, with her grandson driving;
After accepting a coffee in a Styrofoam cup and driving forward, the grandson stopped so that his grandmother could add cream and sugar to her coffee;
With the car completely stopped, Ms. Liebeck put the Styrofoam cup between her knees;
The cheap lid on the cheap Styrofoam cup was hard to get off;
When Ms. Liebeck pried the lid off, the coffee spilled on her lap;
The spilled coffee was somewhere between 180 and 190 degrees Fahrenheit;
The scorching coffee inflicted what a vascular surgeon diagnosed as full-thickness, third-degree burns on Ms. Liebeck’s inner thighs, perineum, buttocks, genitals, and groin area;
Third-degree burns are extremely serious and life threatening; the burns extended cut through Ms. Liebeck’s skin, fat, and muscle, nearly reaching the bone;
Liebeck was hospitalized for eight days; she underwent skin-grafting surgery and debridement;
Liebeck was permanently disfigured and disabled for two years as a result of the incident;
Liebeck had previously retired from a hard-working career as a department store clerk; she was the type of person who would only sue someone if she had no other choice;
Accordingly, despite her severe injuries, she asked McDonald’s only for $11,000—the cost of her medical bills;
McDonald’s refused to pay her a cent;
Stuck with $11,000 in medical bills, the elderly Ms. Liebeck was forced to retain an attorney; she chose Reed Morgan of Houston, Texas;
Morgan had previously sued McDonald’s because its coffee severely burned and disfigured another patron;
In that first lawsuit, McDonald’s’ quality assurance manager testified that he was “aware of the risk” of 190-degree coffee, but “had no plans to turn down the heat” despite the fact that it was scorching people;
Despite the terrible facts against McDonald’s, Ms. Liebeck was not greedy; she told her lawyer that she would accept $90,000, for medical expenses and pain and suffering;
Morgan made this offer to McDonald’s; the corporation countered with an insulting offer of $800;
It was only then that Ms. Liebeck filed a lawsuit;
Liebeck’s lawyers were of course forced to spend a lot of money preparing the case for trial; nonetheless, and despite McDonald’s’ despicable behavior, Ms. Liebeck and her lawyer offered $225,000 to settle on the eve of trial;
McDonald’s refused to settle;
The evidence at trial was damning: McDonald’s was aware of more than 700 claims brought against it between 1982 and 1992 due to people being burned by its coffee; many of these claims involved third-degree (down to the muscle and/or bone) burns; nonetheless, McDonald’s refused to change its corporate policy and serve its coffee at a reasonably safe temperature; by the end of the trial, the jury was by all accounts disgusted with McDonald’s;
Attorney Kevin G. Cain, of the firm Martin, Disiere, Jefferson & Wisdom, LLP in Houston, recounts the result in his phenomenal article, “And Now, The Rest of the Story…The McDonald’s Coffee Lawsuit,” published awhile back in the Journal of Consumer & Commercial Law:

The jury deliberated after hearing seven days of evidence, testimony, and arguments of counsel, finding that McDonald’s was liable on the claims of product defect, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for particular purpose. The jury further determined that Ms. Liebeck’s injuries merited an award of $200,000 compensatory damages. However, because the jury found that Ms. Liebeck was 20% at fault, that award was reduced proportionately to $160,000. Finally, the jury awarded Ms. Liebeck $2.7 million in punitive damages based on its finding of willful, reckless, malicious, or wanton conduct. The amount of $2.7 million was arrived at based on evidence the jury heard that McDonald’s daily coffee revenues amounted to approximately $1.34 million. These exemplary damages represented about two days’ worth of McDonald’s coffee revenues. However, a fact that rarely ever makes headlines (in this case, or in any allegedly “fraudulent” lawsuit) is that the punitive damages were reduced by the trial court to $480,000 (three times the compensatory damages) for a total award of $640,000. Judge Robert H. Scott, who presided over this trial, stated in regard to the reduced punitive damages award:

I think that there was evidence and argument about the Defendant’s knowledge that the coffee could cause serious, third degree, full tissue burns. The Defendant McDonald’s knew that the coffee, at the time it was served, was too hot for human consumption . . . . [T]he written transcript is not going to reveal the attitudes of corporate indifference presented by demeanor or of the witnesses for the Defendant McDonald’s as well as their employees, but the jury was exposed to it and I think that they properly considered it in their deliberations. And let me say that with knowing the risk of harm, the evidence and testimony would indicate that McDonald’s consciously made no serious effort to warn its consumers by placing just the most simple, adequate warning on the lid of the cup in which the coffee was served. . . . This is all evidence of culpable corporate mental state and I conclude that the award of punitive damages is and was appropriate to punish and deter the Defendant for their wanton conduct and to send a clear message to this Defendant that corrective measures are appropriate.

Judge Scott ordered the parties to engage in a postverdict settlement conference which resulted in a settlement of the case for an undisclosed amount (less than $600,000) which remains confidential.

Armed with the actual facts, do you still feel the same way about this “frivolous lawsuit?”

I didn’t think so. The author of the McDonald’s lawsuit article makes a great point about the need to be informed:

In the Federalist Papers, Alexander Hamilton wrote of “the effects of those ill humors, which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” By educating people, one on one, about the facts in Liebeck v. McDonald’s Restaurants, it is possible to begin dismantling the public’s perception of frivolous lawsuits and change the misconceptions about our profession and our legal system.

How prescient. It’s time we turned off Faux News, CNN, and MSNBC and picked up the great American papers, which still care about accuracy and objectivity. If we all read the New York Times, the Wall Street Journal, or the Washington Post on a regular basis, we would all be better off. A lot better.