Tort reform - "catapult the propaganda" (George Bush)

[telemann.livejournal.com]

The documentary shows quite clearly that many of the "citizens for tort reform groups" are nothing but astroturf organizations funded in large part by the U.S. Chamber of Commerce, and or even private companies such as R. J. Reynolds (Karl Rove worked as a lobbyist for RJR in Texas and was the main political force for Texas tort reform). You have a very powerful business industry using large amounts of money to tilt the legal system their way.

Everyone (or most everyone) knows the story about the 79 year old woman (Stella Liebeck) who spilled McDonald's hot coffee on herself and then sued for millions. The case became a laughing matter for many comics and was the seemingly start of a national debate on preventing "frivolous" lawsuits where obviously the person filing was looking for "jack-pot justice." That's the PR the business community wanted you to believe. The realty of the case was a lot nuanced than that.



The official trailer for Hot Coffee

The documentary starts off with the public's perceptions about the case, and it's all the typical thing: a woman was looking to cash in looking for millions at McDonald's expense, despite her own responsibility. What you discover is that after having 3rd degree burns over her nearly 20 percent of her body (pelvis, thighs, hips and waist area - TRIGGER WARNING photo 1 of her injuries and and photo 2 ). Ms. Libseck had to endure surgeries as well as extremely painful skin grafting: the family wrote to McDonald's telling them about the issue with their coffee being too hot. The family asked that the medical expenses be covered up to that point (about 10,000.00). McDonald's refused and offered the family 800.00 The case went to trial, and during the discovery process, McDonald's own internal documentation showed coffee was to be kept at between 180 - 190 degrees (more than a few seconds contact with skin would cause 3rd degree burns and significant internal damage if drank to fast). But more telling: memos and reports indicated that over 400 previous incidents of injured customers from the coffee had occurred, and McDonald's made no efforts to change their policies in serving hot liquids. A jury found Ms. Libseck 20 percent responsible for her injuries and awarded her 200,000 in compensatory damages (meant to cover costs of medical procedures, physical therapy, nursing care, etc). The jury then awarded her 2.7 million in punitive damages (the figure was arrived at by the jury using sales figures that showed McDonald's earns 1.5 million dollars a day in coffee sales nationwide. The judge immediately reduced the punitive damages to 400,000 and McDonald's made an out of court settlement with Ms. Libseck.



Most Americans don't know how the civil justice system works, and that it's really the only branch within our legal system where the average person has a single level playing field and seek redress from a business man or a large corporation; and that your right to do this is a fundamental constitutional right. Large businesses have undertaken a 25 year crusade to trump up public angst over "frivolous lawsuits") and shows the historical nature of this campaign in both the media and at the state level with the Chamber of Commerce spending enormous amounts of money in state judicial elections. This happened when after several states passed caps on jury awards and TORT reform, several state supreme courts threw out the laws in violation of their states' constitutions. Karl Rove and Texas gubernatorial candidate George Bush made tort reform one of their election planks, claiming lawsuits were driving up medical costs for everyone (it's shown in the film that medical costs have not dropped in any state that's passed limits on jury awards or severely hampered a person's rights to sue for medical malpractice, and it's also shown that despite these laws, insurance companies are not required to lower their rates to doctors, and of course invariably, they never lower fees).

The fundamental issue with tort reform is that it's taking away the power of the jury and judges to make fundamental decisions on evidence heard in cases and given it to law makers who set arbitrary limits. In one case, a Nebraska woman won a 5 million lawsuit against her doctor due to malpractice. The baby was deprived of oxygen and has severe complications that require enormous amounts care and rehabilitation and physical therapy. But Nebraska has a punitive damages cap, and the family ended up with less than 500,000 to treat the boy. What will happen? They'll use Medicare and when the boys parents eventually die, he'll become a ward of the state.

It's a great documentary, and highly recommended to give you an insight on a topic that's been rather misrepresented in the media.

Here is an interview with the director:

For further reading on this subject, may I recommend

1. Distorting the Law: Politics, Media, and the Litigation Crisis.

2. Snopes looks into the "Stella" awards, a prize given to the most absurd lawsuits (named after the plantiff in the McDonald's case), "According to Snopes.com, a website that debunks urban legends, “All of the entries in the list are fabrications – a search for news stories about each of these cases failed to turn up anything, as did a search for each law case."

Comments

[badlydrawnjeff.livejournal.com]

And now the other side (http://www.miamiherald.com/2011/06/26/2282999/a-documentary-about-lawyers-this.html):

But then there’s a lot in the Liebeck case that goes unreported in Hot Coffee, including testimony that the 180-degree brewing temperature of McDonald’s coffee was in line with industry standards or that coffee connoisseurs say that’s the optimum serving temperature. A juror in the case is interviewed and makes much of the fact that McDonald’s had recorded 700 complaints about the temperature of its coffee, but there’s no attempt to put that into the context of the literally billions of cups of coffee the restaurant has served.

...

Hot Coffee does not include a single meaningful interview with anybody who believes in tort reform, just a handful of sound bites intended to convey the appearance of open-mindedness. Yet the film has running commentary from the heads of three supposed consumer groups that are all really disguised political-action committees for trial lawyers. Two — Texans for Public Justice and the Center for Justice and Democracy — actually share some of the same officers, one of the facts curiously undisclosed in Hot Coffee.

Another: Among the big donors to Texans for Public Justice was the late Fred Baron, a Dallas trial attorney who made zillions from asbestos lawsuits and then altruistically passed along a good chunk of the take to the mistress of sleazy ex-presidential candidate John Edwards.

Documentary filmmaking is almost always useless when it's agenda-driven. It's the abuse of the legal system - and yes, the coffee case is an abuse of the system, since the temperature McDonald's served coffee was within standard norms (http://overlawyered.com/2005/10/urban-legends-and-stella-liebeck-and-the-mcdonalds-coffee-case/) (linking to a blog overview as the source is behind a paywall) - to sue over standard issues that few have issues with.

The fundamental issue with tort reform is that it's taking away the power of the jury and judges to make fundamental decisions on evidence heard in cases and given it to law makers who set arbitrary limits.

Indeed, it's exactly this, as it's a reform of the judicial system to make sure the judiciary is serving all comers, not just those who challenge others with bigger wallets.

It's a great documentary, and highly recommended to give you an insight on a topic that's been rather misrepresented in the media.

If I may be so bold, that people take the side of Lisbeck tells me that, yes, the topic has been misrepresented in the media, and has been too deferential to those bringing the bad lawsuits.

[telemann.livejournal.com]

There were 700 claims by people burned by its coffee between 1982 and 1992 some of them third degree burns as well.The testimony of Mr. Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, "There are more serious dangers in restaurants."

Mr. Elliott, the juror, says he began to realize that the case was about "callous disregard for the safety of the people."

[badlydrawnjeff.livejournal.com]

There were 700 claims by people burned by its coffee between 1982 and 1992 some of them third degree burns as well.

Indeed. Out of how many servings, again? This context matters. 700 claims (that doesn't mean they were valid, after all) over 10 years is not anything to be concerned about given the amount of people served, drinks served, etc. It's treating the exception as the rule.

Mr. Elliott, the juror, says he began to realize that the case was about "callous disregard for the safety of the people."

That's nice. It doesn't make it true, but he's entitled to his own opinion on the matter.

The issue is simple - the legal system is designed to right a wrong. McDonald's did no wrong in offering coffee within the standard temperature. That there was any resolution to this case that resulted in McDonald's having to pay restitution, settlement or otherwise, is a miscarriage of justice.

[telemann.livejournal.com]

The Miami Herald also issued an apology for Mr. Gavin's article which you linked to earlier. The producer of the documentary responded to Mr. Gavin's talking points in her own letter to the editor.

Re Glenn Garvin’s June 26 review, A documentary about lawyers, this time crying over spilled coffee: Garvin has a right to his opinion about the documentary Hot Coffee, but he does not have the right to misrepresent our organization, the Center for Justice & Democracy.

I helped found CJ&D after working for a number of years with Ralph Nader on liability and insurance issues. Nader, a group of consumer advocates and I founded this organization together. We are a tiny group, funded by foundation grants (not related to lawyers), memberships and subscriptions to our materials and donations. We are not a political front for anyone, including trial lawyers. Our board of directors consists of a film producer, a political science professor and me.

This article is less a film review than a list of tired, incorrect talking points, the sorts of things more likely to come from corporate special interests than TV critics. We wonder who may have supplied this false information to Garvin.

Joanne Doroshow, executive director, Center for Justice & Democracy, New York

Looks like Mr. Gavin fucked up.

[the-rukh.livejournal.com]

Jeff automatically jumping to the defense of corporate rights to mutilate people. No surprise here.

[mrbogey.livejournal.com]

Why should there have been punitive damages for something that is a commonly accepted practice?

[badlydrawnjeff.livejournal.com]

I don't recall any defense of a right to mutilate people. I note a right to sell coffee at a normal, acceptable temperature, though.

[a-new-machine.livejournal.com]

It's worth noting that industry standards do not reasonable action make, if those standards are themselves unreasonable. And here, McD's had notice (however proportionately small) that their standards were unreasonable.

[mrbogey.livejournal.com]

I think it does in regards to punitive awards.

If the industry as a whole agrees on the proper temperature serving then why should McDonald's be punished for it?

[badlydrawnjeff.livejournal.com]

And here, McD's had notice (however proportionately small) that their standards were unreasonable.

I wholly disagree. Of the millions (billions?) of coffees they served over that time period, a select few, a statistical anomaly, complained about it. That's not reason to consider the standards unreasonable - that's evidence they're doing it right.

[dwer.livejournal.com]

Did you look at the picture of her injuries?

McDonald's had been in more than one previous civil case due to injuries related to coffee so hot it required skin grafts.

[badlydrawnjeff.livejournal.com]

Yes, I'm aware of the injuries. My point continues to stand.

[dreadfulpenny81.livejournal.com]

Not to mention the fact that any "genius" knows that YOU DON'T PUT A HOT CUP OF COFFEE BETWEEN YOUR LEGS WHILE DRIVING!

[dreadfulpenny81.livejournal.com]

Oh, pardon me, she wasn't driving. In any case, you don't put a hot cup of coffee between your legs, then open the cup. That's just common sense.

[badlydrawnjeff.livejournal.com]

No, clearly McDonald's forced her to do that.

[a-new-machine.livejournal.com]

Most Americans don't know how the civil justice system works, and that it's really the only branch within our legal system where the average person has a single level playing field and seek redress from a business man or a large corporation; and that your right to do this is a fundamental constitutional right.

Citation for the constitutional right?

As for the main issue:

Tort reform would probably be a good idea in some minor ways. The problem is that it's sold as an actual solution for health care costs, when it's a very, very small part of the total costs. "CBO now estimates, on the basis of an analysis incorporating the results of recent research, that [tort reform]... would reduce total national health care spending by about 0.5 percent (about $11 billion in 2009). That figure is the sum of the direct reduction in spending of 0.2 percent from lower medical liability premiums, as discussed earlier, and an additional indirect reduction of 0.3 percent from slightly less utilization of health care services."

Even then, these are not huge payoffs for the harmed individuals. It takes years to do these lawsuits, and the lawyers will fight them tooth and nail with every tool they have (which, of course, is proper). Often they're disabled, paying bills, interest, etc. while they fight with the corporation's lawyers, and the corporation's insurance company's lawyers. It's not like these are easy, quick payoffs.

[hardblue.livejournal.com]

Citation for the constitutional right?

It's probably a loose reference to the right to enjoy due process of law.

[a-new-machine.livejournal.com]

Yeah, but that's only applicable when government seeks to take your life, liberty or property. There is the right to a jury trial in suits before common law, but that's not a right to sue, it's a right to a forum for your suit. The lawsuit itself must be otherwise authorized.

[rick-day.livejournal.com]

I also thought of equal protection issues as well

[giandujakiss.livejournal.com]

There is a Seventh Amendment right to a jury trial in civil lawsuits where the amount is controversy is more than $20.

[a-new-machine.livejournal.com]

Yes, but that sentence was talking about a constitutional right to sue, which is different. Once a lawsuit is initiated, you're right, but that sentence was about the right to sue in the first place.

Also, the Seventh has never been incorporated onto the states, so it's of limited use, as most tort trials are based on state law with no federal claims, and could only get into federal court on a diversity basis, which (if I'm recalling civpro correctly) means they're governed by state law on the topic, overseen by federal magistrates and procedural law (again, I may be mis-remembering that point).

[jonathankorman.livejournal.com]

I am reminded of one of the most important articles on teh internets, Teresa Neilsen Hayden's Common Fraud. (http://nielsenhayden.com/makinglight/archives/005850.html)

Common Good is a corporate-funded organization whose entire purpose is deception and the spread of disinformation.

Cute, huh? Large corporations can do stuff like that. They have lots of money. The same kind of resources that can buy them airtime and slick ads for their products can also buy them the entire appearance of whole grassroots groups, organizations, and popular movements.

What’s going on here?

In the case of Common Good, the agenda being pursued can be loosely grouped under tort reform, which isn’t a reform movement at all. It’s a massive lobbying and PR campaign surreptitiously financed by business interests. It works to (1.) bring the law into disrepute; (2.) turn public opinion against small plaintiffs by portraying them as greedheads who file groundless or frivolous lawsuits; (3.) spread the idea that American firms are being driven out of business by runaway jury verdicts (which they aren’t)(and by the way, juries tend to make smaller awards than judges do); (4.) likewise spread the idea that American doctors are being ruined by skyrocketing malpractice premiums caused by an epidemic of outlandish malpractice awards (premiums are up, but malpractice awards aren’t, and the greedheads in this instance are actually the insurance companies); and (5.) create a climate of public opinion that will enable them to get laws and regulations permanently changed in their favor.
....
You know all those stories you’ve read about ridiculous court cases (http://www.power-of-attorneys.com/stopabuse.htm) where greedy plaintiffs and their greedy lawyers collect huge settlements for minor injuries that were their own fault in the first place? The McDonald’s coffee case (http://corpreform.typepad.com/corpreform/indepth_articles/index.html) is the most famous. I’m sorry to say that those stories are fabrications, part of the PR campaign. Some of them are pure fiction. Others have been cooked up by grossly misrepresenting real court cases. Netizens have spread them far and wide.
....
A few years back I had an argument with one of my brothers. I said that right-wing disinformation had a whole lot more money and organization behind it than anything the left had to say. He said no, it didn’t. I said yes, actually; it did. He again said no it didn’t, so I saw there was no use in talking about it, at any rate not with him. But it’s true. Corporate America doesn’t just buy airtime and put together slick ads for its products. It also uses its money to generate some of the slickest disinformation on the planet.

We think we’re so clever, we think we can cope, we think we’re on top of the problem. We don’t just take any old advice off the Internet. We think we know where to find the good stuff. We know to think twice before listening to corporate spokesmen. We give extra credence to private netizens who, out of the kindness of their hearts, are giving us the straight dope on something. We’ve done it a hundred times before. We’ve done the same when someone asked a question we could answer, and felt good for being able to help them.

It’s different now. There’s too much money at stake for that frontier to stay open. Deceiving us has become an industrial process.

[dwer.livejournal.com]

Clearly, if you don't like the information you're getting on this Internet, you should take your business elsewhere.

they descended like flying bible bugs

[rick-day.livejournal.com]

Tort 'reform' happened here in GA as well. It was like a plague of locusts descend from parts North and West, shitting on the grounds of the Gold Dome™ copious amounts of cash.

Once they left, there was a cap so low on punitive damages that litigation specialists in this field will only take Federal Cases. If your doctor shoots your spouse, that's death. If your doctor kills your spouse on the surgery table, well, that's life.

And like the locusts, no one could stop it. Damage done, the fled as fast as they came, moving to the next state.

bastards

Re: they descended like flying bible bugs

[telemann.livejournal.com]

Yeah they highlighted the case of the Mississippi Supreme Court Justice that the Chamber of Commerce ran ads against: they had purchased all the available air time in Mississippi markets. The judge couldn't have purchased the air time even if he had the money (which he didn't).