I republish this article written by Gerald R Shargel which was published on the Daily Beast. I commend it to all my law students - and to anyone who is concerned that debate is being manipulated by those who have their own agenda -
Scalding Takedown on Tort Reform
A new documentary about the McDonald’s ‘hot coffee’ lawsuit takes aim at corporations and conservatives seeking to restrict liability in the name of tort reform.
Hot Coffee, a documentary by first-time filmmaker Susan Saladoff, is sure to stir (pun intended) the decades-old debate about limiting money judgments in civil cases. The title of the film stems from the widely-reported and commonly-mocked $2.9 million jury verdict awarded in 1994 to Stella Liebeck, an 81-year-old woman who claimed that she was injured because McDonald’s served its coffee too hot. In some circles, the McDonald’s coffee case became the paradigm of frivolous lawsuits brought by greedy plaintiffs and greedier trial lawyers who were unfairly affecting the profit margin of model corporate citizens. Saladoff sees things differently. In this informative, persuasive documentary, she sets out to prove the harsh unfairness of the relentless conservative campaign to dilute or diminish the 7th Amendment right to a jury trial in civil cases, all in the name of “tort reform.”
To demonstrate that the McDonald’s case was actually not frivolous at all, she carefully and cleverly debunks the myths, false accounts and misperceptions that surround the infamous coffee spill. At first, her “man on the street” interviews produced the expected result: the McDonald’s case was shameful, and emblematic of American greed and abuse of the court system. But then, with the very same people who were contemptuous of the lawsuit, Saladoff pulls out her ace: graphic, highly disturbing photos of the burns suffered by Lieback that cause the doubters to instantly change their minds about the merits of the lawsuit and conclude that the victim’s claims were well-founded.
Saladoff is no neutral, detached observer. Before turning to filmmaking, she was a plaintiff’s lawyer for 25 years, profiting from litigating civil tort claims. In light of that fact, you might argue that using shocking photographs to change the mind of an interview subject was a trial lawyer’s sleight of hand. The photographs show the horrific injuries suffered as a result of the spill, but they don’t tell the whole story. In the eyes of many, there remains the question of whether McDonald’s should have been found responsible or held liable for those burns. Although the McDonald’s jury found Lieback 20 percent responsible for her injuries, questions linger about acceptance of responsibility for one’s own actions—Lieback was struggling to get the top off a recently purchased container of coffee while sitting in a parked car, balancing the coffee between her legs.
Saladoff admits that she made the film to advance her anti-tort reform point of view. And with this perspective, she takes Michael Moore-ish aim at those who lobby for tort reform, those who seek to limit access to the courts or the dollar amount a jury can award, no matter how catastrophic the injury. File footage draws the cultural divide. President George W. Bush, in his familiar awkward syntax, speaks out in favor of tort reform with Karl Rove literally and figuratively at his side. Corporations that fund the lobbyists who promote tort reform are the bane of liberal existence: Halliburton, Pfizer, Dow Chemical, and Philip Morris, to name just a few. On the other side of the chasm, Hot Coffee includes a parade of trial lawyers, public interest lawyers and lobbyists who oppose tort reformers stealth efforts to compromise the rights of aggrieved parties.
In an interview earlier this year, Saladoff noted that corporations have spent enormous amounts of money to get their tort reform messages across and that few people understand the other side of the issue “until they’ve tried to access the system and discovered they can’t.” Saladoff illustrates this point with the case of Jamie Leigh Jones, who at age 19 took a job in Iraq with KBR, then a subsidiary of Halliburton. Although promised living quarters that would provide both privacy and security, Jones was housed in an all-male dormitory where, four days after her arrival, she was drugged and brutally gang-raped by KBR employees. Seeking to bring an action against her employer, Jones discovered that her employment contract contained a mandatory arbitration clause that prevented her from redressing her claims before a court and jury, a forum in which she would understandably place greater confidence.
Through the torturous stories of Jamie Leigh Jones and others, Saladoff shows with incandescent clarity that the unabashed aim of the “reformers” is to shield large corporations and medical professionals from being held accountable, allowing those who commit negligent or wrongful acts to escape meaningful responsibility.
“ Saladoff shows with incandescent clarity that the unabashed aim of the ‘reformers’ is to shield large corporations and medical professionals from being held accountable.” For years, conservative proponents of tort reform have argued that unlimited money judgments, both compensatory and punitive, are tearing at the fabric of American society—retarding corporate growth or discouraging those who may wish to become doctors. The tautological blame always comes back to the claim that frivolous or even fraudulent lawsuits are commonplace.
Hot Coffee includes historical footage of President Reagan calling for tort reform, isolating the case of an unidentified man who was struck by a drunk driver and seriously injured while on a roadside call in a Los Angeles phone booth. Reagan humorously reports to his audience that, “you may be startled to hear” that the victim not only sued the driver, as expected, but an action was also brought against the telephone company, as if to suggest that a lawsuit against the telephone company was preposterous. Saladoff follows the Reagan clip with the facts: The telephone booth was erected too close to the highway and had been hit by cars several times before, damaging the phone booth door, which was never properly repaired. The victim in the case lost his leg because the door to the booth was stuck closed, rendering it impossible to escape the oncoming car. The case against the telephone company was hardly frivolous.
While there may be no reliable data about the number of frivolous lawsuits filed each year, the civil justice system is largely self-regulating and the vast majority of frivolous lawsuits are weeded out early. The initial filtering process is the assessment of the case by lawyers who often take cases on a contingency basis, earning a fee only if there is a recovery; lawyers understandably will avoid a case where the claim is unlikely to succeed. Even after a jury verdict, a judge has the right to modify a jury’s damage award if the evidence does not support it. In Lieback’s hot coffee case against McDonald’s, the trial judge reduced the $2.7 million punitive damages verdict to $480,000, while compensatory damages were reduced from $200,000 to $160,000.
Tort claims serve the public good. More than simply compensating victims, meritorious lawsuits can force corporate or individual defendants to change or modify the behavior that caused the harm or injury. Hot Coffee lends a strong voice to those who favor fundamental fairness in redressing well-founded claims.
