Boston Accident Lawyer Blog

Too often within the escalating debate over “tort reform”, the facts take a distant back seat to ever more shrill demagoguery.

It seems that all we ever hear from proponents of tort reform, and their Republican lapdogs in Congress and in State Houses across the country, are noxiously recycled claims that liability insurance premiums are supposedly caused by “frivolous lawsuits, run amok.” These liability insurer-funded interests claim that if we just enact tort reform (translation: If we decimate our civil justice system,) all kinds of liability premiums, from auto insurance to homeowners insurance to medical malpractice insurance, would drop and stay down. Think again, America: It’s not so. And it rarely, if ever, has been. These claims are the worst form of legislative bait-and-switch perpetrated on the American public. And the driving forces behind tort “reform” – the liability insurance industry – knows it.

Though I have to hand it to them when it comes to campaign strategy planning, because they also know something else: They know that they can’t be the ones to most openly make these arguments, or they’ll appear too self-interested. After all, they're the ones who stand to reap millions in premium that they'll never pay out to injury victims, if the doors to the courthouse are forever locked. The best strategic tactic in this case? Get other groups to “front” these claims. The best groups to get to do this? Their customers, who are being gouged by the high liability premiums their carriers charge them. Who are those customers? Doctors, business owners, commercial property owners, private property owners, homeowners, and anyone who owns a car. Anyone who buys liability insurance of almost any kind. All these groups are angry, motivated forces who can be (quite literally) conned into believing that the reason their premiums are so high, is a “lawsuit crisis.” Not a bad strategy, from a public affairs campaign standpoint. Displaced anger is precisely what’s fueling the Tea Party movement, and it works. Just ask any master of misinformation (Karl Rove comes to mind.)

The problem is, almost everything about tort "reform", is a lie. Or, at the very least, wildy distorted from the truth.

A recent editorial by The Boston Globe, in commenting on recent Congressional activity over the subject of medical malpractice reform, noted that in the over thirty states where some form of medical malpractice “reform” has been enacted by state legislatures, little to no lasting malpractice premium reductions have been experienced. Care to know what has been experienced as “lasting” and “deep” in those states? The loss of crucial legal rights by citizens of those states, to recover for many times horrific injuries caused by medical negligence, that’s what. Those rights were rapidly taken away in the frenzy of “tort reform” that was hyped in those states. In many of those states now, entire classes of medical negligence and other injury cases can no longer be brought to a jury. Of the remaining cases that are allowed, caps on damages –economic and non-economic – are cruelly in place, preventing injured victims from recovering anything beyond a set cap, no matter what the evidence, no matter how egregious the negligence.

Whether the case is a car accident case, a medical malpractice case, or a premises liability case, injury victims in those states are now treated more like statistics and numbers, than real people whose lives have been forever altered due to someone else’s negligence.

And the promised insurance premium reductions that were trumpeted in the process of this destruction of civil justice rights? Oh, that. Yes, in some states there was temporary premium relief – nothing more than token, temporary cosmetic measures by the insurance companies that won at the legislative feeding trough of tort reform. After a year or so, those premiums came right back up – but the civil justice and tort recovery rights that were trampled in the process, never came back. They’re gone. And the legal rights of injury victims in those states? Gone with the wind.

So remember this the next time you hear some talking head on TV, or some blathering loudmouth on radio go on and on about why tort “reform” should be enacted. Remember what “bait and switch” means on this subject. And remember this: If tort “reform” is to be enacted in the state where you live, are you willing to be the first person to lose your rights to recover in court for possibly horrendous, lifelong injuries? Are you willing to be the first person who is locked out of the courthouse, if you’re injured by someone else’s negligence?

See through the “bait and switch” in this debate. Don’t let it happen. Because when it comes to losing these critical legal rights to bring your injury case to court, I’ll borrow a tag line from another worthy cause: Extinct is forever.

In my previous posts on this multi-part subject of tort reform, I discussed what tort reform is, who is behind it, and what it would do to the average Massachusetts citizen, in taking away your legal right to recover for injuries you’ve suffered because of someone else’s negligence.

Now I’ll address the twisted story of what the insurance industry uses as ‘Exhibit A’ when they argue for tort reform: The famous “McDonald’s Coffee Case”. You’ll see that what this case is really “Exhibit A” for, is not telling the full story or reporting all the facts, which results in complete disinformation. (Otherwise known as “spin.”)

This is the case of Liebeck vs. McDonald’s Corp. Stella Leibeck was a 79 year-old grandmother in New Mexico, who suffered third degree burns over her legs and lower abdomen after she purchased coffee at a McDonald’s drive-through, back in 1992. Liebeck sued McDonald’s for producing coffee that was so hot it couldn’t be handled safely, never mind actually consumed safely. This type of case is known as a Product Liability suit. A jury awarded her $160,000 in damages, which reflected their determination that Ms. Liebeck was 20 per cent at fault for the accident (she spilled the coffee on herself.)

These next two points that follow are extremely important:

1) The jury also awarded her $2.7 million in punitive damages against McDonalds – because the jury found shocking evidence that McDonalds Corp. had previously received more than 700 complaints about coffee-related burns in the ten years that preceded Ms. Liebeck’s injuries – and yet chose to do nothing to correct their system of coffee making, because it would have cost the company ‘too much money’ to change their standardized system of brewing coffee through their thousands of franchises across the United States. Think about that: Can you imagine what 700 separate letters look like – all complaining and warning of the same problem – coffee so hot it was causing horrific burns – and yet McDonalds made a “cost-benefit” decision to do nothing to correct the problem! This is exactly the kind of decision that Ford Motor Company became famous for, with the old "Pinto" bumpers causing gas tank explosions at low-speed impacts. Once again: Corporate profts at the expense of human safety.

2) After the verdict, the media reported that a New Mexico jury had awarded Mrs. Liebeck nearly $3 million in compensatory and punitive damages for her burn-related injuries. But what the media didn’t report was that the trial judge reduced the $2.7 million punitive damage award by more than 82 percent! This point illustrates two other key points in the tort reform debate: One, the safeguards that are built into the civil liability (tort) system, which tort reform advocates don’t tell you about: A jury can award what it feels is appropriate, but the trial judge has the power to reduce (or enlarge) a jury award, in the interests of justice. And two: The distortions that tort reform advocates regularly engage in – telling people only half the story – the half that suits their purposes.

And the McDonalds Case” doesn’t end there. There are a few more critical facts I can almost guarantee you, that you’ve never heard about, with this story:

1) McDonald’s rejected a pre-trial settlement demand of a mere $20,000 by Mrs. Liebeck’s attorney. (As a Massachusetts personal injury lawyer, I think $20,000 as payment for suffering third-degree burns over your abdomen, lap and legs is more than reasonable, given the above evidence that was discovered.) McDonalds rejected this settlement offer despite the fact that Mrs. Liebeck was hospitalized for eight days of in-patient hospitalization and required multiple skin grafts due to the burns she suffered;
2) McDonald’s was fully aware that liquids served above 140 degrees caused serious burns upon skin contact, but refused to change the standardized practice, because changing a nationwide system would cost ‘some money’.
3) Despite numerous media reports, Mrs. Liebeck was not the driver at the time she was injured, but was passenger in her grandson’s car.

So, as the late broadcaster Paul Harvey used to day, now you know ‘The Rest Of The Story.” Tell your friends this, and remember it the next time you hear the words “outrageous jury verdicts”, “lawsuit crisis” and “tort reform.” Because a lot is at stake in this debate – namely, your right to go to court and recover damages if you’re injured. And trsut me, a Boston injury lawyer, I can assure you: that’s no small order.