Watching the HBO Documentary "Hot Coffee" is a must for everyone, especially those that think we live in a word of frivolous McDonald's type lawsuits.
By Mark T. Freeley, Esq. (Open Post)July 29, 2011 at 9:04am
It's been a while since the McDonald's hot coffee case made the headlines for something it really wasn't. However, I recently watched an HBO Documentary film on HBO on Demand, entitled "Hot Coffee," and I dare any and all Tort Reform advocates to watch this film. In fact, I double dog dare you. This documentary is so compelling that anyone who was ever in favor of caps on damages or limiting a wrongdoer's liability for the harm they caused will have a change of heart by the end of the film.
No one case that I can think of has done more to give the public a negative view of personal injury lawyers and "those" people that bring lawsuits than the McDonald's hot coffee case. As the media reported the case, an older woman sued McDonald's and received $2.9 million dollars for spilling a cup of coffee on herself. This is basically all the information that the public was given and it has stuck in people's minds to this very day. However, the facts of that case will surprise you, and even change your perception of our civil justice system. You may even start to think that personal injury lawyers are not all that bad; OK, maybe I won't go that far.
In 1992, Stella Liebeck purchased a cup of coffee at a McDonald's drive through. She was a passenger in the car and the driver pulled into a parking space in the parking lot so Stella could add milk and sugar to her coffee. The car did not have any cupholders, so she placed the cup between her knees and began to lift the lid from the cup. As she did so, the coffee spilled onto her legs . She suffered third degree burns to her inner thighs, buttocks, perineum, genital and groin areas. She was admitted to the hospital for 8 days, underwent skin grafts, debridements and was disabled for 2 years following the accident. Her treating physician testified at trial that it was one of the worst scald burns he had even seen, and the photographs of the burns were gruesome. The out of pocket medical bills not covered by Medicare were approximately $10,000, and before hiring a lawyer, her daughter wrote to McDonald's to try to have them cover these bills, but McDonald's wouldn't even offer her $80.
At trial, the jury allegedly learned that McDonald's corporate directive was that its coffee was to be served between 180 and 190 degrees Fahrenheit. At that temperature, third degree burns occur within 2 to 3 seconds. McDonald's own records allegedly showed that from 1982 to 1992 over 700 people had been burned by McDonald's coffee, and McDonald's admitted at trial that it had known of the risk of serious burns and had no plans to reduce the temperature of its coffee.
McDonald's also admitted that because of the temperature of its coffee that it was not fit for human consumption for the first 10 minutes, as it would cause scald injuries to the mouth and throat. It was also allegedly shown that McDonald's coffee was sold at temperatures dangerously higher than the coffee served by other fast food chains. Many of the more specific facts were tightly sealed behind a confidentiality agreement that went along with the final unknown settlement amount.
However, it was alleged that McDonald's, aware its market share was substantially down, hired marketing experts to determine the reason. They determined that the lost market share was due to an average 22 minute gap from the point of purchase of breakfast/coffee to the time it was consumed at which time the coffee was cold. As a result, McDonald's retro-fitted the coffee urns to raise the temperature high enough to ensure the coffee remained hot for 22 minutes after being poured.
The jury of 12 after learning the above, unanimously awarded Mrs. Liebeck $200,000 for her severe injuries, which was reduced to $160,000 as they found her to be 20 percent at fault. The jury also awarded $2.7 million in punitive damages to deter similar conduct. As McDonald's sold one billion cups of coffee a year, generating $1.3 million a day in revenues, the jury's punitive damages award was equal to a mere 2 days worth of McDonald's coffee sales. The trial judge reduced the punitive damages award to $480,000, but said that McDonald's had engaged in "willfull, wanton and reckless behavior." Punitive damages are rarely awarded, and are used to change the behavior of big companies.
The truth behind this case was never revealed and the case of the old lady who spilled hot coffee on herself and got millions was used to push the tort reform agenda of big business. There was a big push across the country to publicize the "hot coffee" case in an effort to get federal Tort Reform legislation through, and it was an effective campaign of mis-information. The legislation was passed and only a veto by then President Clinton prevented it from becoming federal law. President Clinton vetoed the bill stating that it would have a devastating impact on innocent citizens.
In 1986 ATRA- American Tort Reform Association was formed by 300 major corporations and insurance companies, with the one purpose of advocating for laws that would limit the liability of its members. They hired a Public relations firm that formed a group for ATRA called Citizens Against Lawsuit Abuse, to make it appear that the advocating was being done by citizen groups that had sprung up spontaneously. In addition to the money coming from the ATRA members, money was also being funneled in from Tobacco companies. This was a carefully orchestrated plan out of Washington, D.C., that even involved Karl Rove, who was a consultant for Phillip Morris, and was involved in the election campaigns of George W. Bush. They used this campaign issue to their fundraising advantage knowing that big business would be more than helpful in funding a pro business candidate. George W. Bush pushed this isse so heavily that he became the Tort Reformer in Chief. Caps on damages became the most common Tort Reform mantra. But caps on damages are the most unfair to persons injured the most seriously. Caps take away the power of the jury to decide what is fair and reasonable compensation. Caps replace this with an arbitrary number that bears no relationship to the harm suffered, with a disproportionate impact to those who have been harmed the most. Caps, which prevent fair compensation forces the injured onto Medicaid or other entitlement programs where the taxpayers pick up the tab. This is not just an economic issue, it's a moral issue as the wrongdoer is not being held accountable.
ATRA and other pro business groups, such as the U.S. Chamber of Commerce (not a government agency, but the largest lobbying group for corporations) wanted to ensure that cap legislation would be upheld as constitutional, so they used money to stack the judicial deck at the Supreme Court level in State Courts. The goal was to influence key judicial campaigns to get corporate interest judges on the bench, and they infused tens of millions of dollars to accomplish this. John Grisham actually wrote the book The Appeal based upon what happened in Mississippi to a consumer friendly judge that was up for re-election. It's down right scary what happened to that judge.
What it really comes down to is whether we trust juries, comprised of our neighbors, to do the right thing. Juries police the wrongdoers who want to police themselves. The Tort Reform agenda seeks to take away the system that is meant to protect us. ATRA and others don't want the level playing field that the courts provide ordinary citizens. As one person in the documentary stated, going to court to gain justice is not a simple process, people have to go through a lot and their lives are affected. It's actually heroic to go to court because when you win a case, you win it for other people as well as gaining justice for yourself.
By the way... McDonald's coffee is now served 10 degrees cooler.