In my blog earlier this week, I referred to the now well-known but misunderstood verdict against MacDonald's several years ago as a result of which a woman received compensation for burns suffered when she spilled hot coffee in her lap. In urban legend, fostered by both lazy journalism and insurance company propaganda, the result has become synonymous with "frivolous" lawsuits and "runaway" juries. It has come to symbolize how the tort compensation system is somehow broken.
First, I will not try to reinvent the wheel. Rather I will refer you to a comprehensive discussion of the case's factual and procedural history that has been published at a website dedicated to research on personal injury-related topics: http://www.hurt911.org/mcdonalds.html.
Having given attribution, I now feel free to quote extensively from this article as follows:
"Stella Liebeck, of Albuquerque, New Mexico, was a passenger in a car when she was severely burned by McDonald's coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a McDonald's. After receiving the order, the driver pulled his car forward and stopped so that Liebeck could add cream and sugar to her coffee. . . . . THE CAR WAS STOPPED when Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap."
"The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. McDonalds refused to pay the 79-year-old woman's initial medical expenses totaling $11,000. McDonalds actually countered with an offer of $800. And they also refused to turn down the heat on their coffee. Left with $20,000 unpaid bills, Stella Liebeck, a Republican who had never filed a law suit in her life, finally hired a lawyer. Liebeck sought to settle her claim for only $20,000, but McDonald's refused. A mediator later recommended the parties settle for $225,000. Again, McDonald's refused and the case went to trial."
"McDonald's representatives lied to the court and jury about the existence of other claims, but documents showing that they knew of more than 700 claims by people burned by its coffee between 1982 and 1992 were admitted in to evidence. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonald's knowledge about the extent and nature of the intentionally created hazard. McDonald's even ignored a request from the Shriner's Burn Institute in Cincinnati to turn down the temperature of its coffee. McDonald's also said that based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees."
A chart introduced at trial showed that when skin is touched by liquid at 124 degrees it takes 3 minutes to cause a severe burn. When the temperature of the liquid is 156 degrees it takes one second. The speed at which the burn is caused continues to increase exponentially such that when Ms. Liebeck was scalded by coffee at about 180 degrees her full-thickness burns were instantaneous. Additionally, at lower temperatures, the potential victim has a chance to mitigate or avoid injury due to both time and the cooling of the liquid. In Ms. Leibeck's case the coffee was no different than napalm.
"McDonald's quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald's coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee. McDonald's also claimed that customers buy coffee on their way to work or home, intending to consume it there, however, the company’s own research showed that customers intend to consume the coffee immediately while driving. McDonald's also argued that consumers known coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard."
The jury awarded Liebeck $200,000 in compensatory damages. The jury reduced this amount to $160,000 because they found Liebeck 20 percent at fault for spilling the coffee (not because she was driving a car). The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.
After the trial and verdict, it was found that the temperature of coffee at the local Albuquerque McDonald's had dropped to a relatively safe 158 degrees Fahrenheit."
In fact, the trial judge, on motion of the defendant, reduced the punitive damages award to $480,000 under a procedure known as remititur. Thereafter, the parties entered into a settlement agreement, the terms of which were confidential.
Several points are illustrated by this case. First, this was NOT a frivolous case. Why is it that insurance companies want to portray cases where a trial has occurred, a verdict has been rendered and the defendant has been found by an impartial jury of the parties' peers to be negligent? Frivolous lawsuits are those that never should be brought, that are without factual or legal merit.
Second, this case illustrates perfectly that the tort system does work. The system has checks and balances and while, as in any system, there are aberrations, this was not one. Further, do not forget the scores of other cases, that would never attract attention, where a person with a legitimate claim is turned away by a callous, cynical jury as just another plaintiff with his hand out.
Finally, taking this illustration, let us consider it in the context of my proposal for tort reform. Knowing these facts, I am absolutely confident that the plaintiff would have had little difficulty in finding counsel willing to post a bond for costs in this case. In fact, under my proposal, after Macdonald's lost the case and the parties began post-trial settlement discussions, the plaintiff and her attorney would be entitled to additional compensation for their costs and fees as part of the settlement discussions.
Again I say, tort reform is NOT what is being dangled by the White House in its farcical demonstration of false bipartisanship. Tort reform, particularly medical malpractice reform has been a spectacular failure in states such as Massachusetts. Massachusetts has had a so-called "tribunal" screening system for almost thirty years. Instead of helping, it only burdened the courts further by grafting another proceeding into the trial process that requires the time of a judge, lawyer and doctor as well as court personal.
My proposal will have the exact opposite effect. It will immediately and drastically reduce the number of cases filed in the system. It will assure that those using the system are responsible for the costs and fees they generate. As with any radical proposal, it will require vetting and analysis; but at its core it is simple, effective and fair.
I could be wrong; I have been before
Tell me what you think.
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