Author: Richard H. Adler

As you may know, our firm strives to deliver timely, useful, medical-legal information and resources to the health care community and victims of injury. Now, we address a larger policy issue: civil justice. A debate is taking place in Congress and the Washington legislature. Whatever is decided will have important implications for you, your family, your friends, and your colleagues. The United States Congress, and soon our own state government, will be voting on changes to our civil laws. The proposed changes have been packaged into one bill and dubbed "Common Sense Legal Reforms."

I have been reading the proposed laws, spending time analyzing them, and trying to better understand the implications they hold for us. Recently, I came across an editorial published in the Seattle Post-Intelligencer on February 13, 1995, that I wanted to share with you. The editors make many of the points I would have, but in a much more concise way.

"CITIZENS' RIGHTS UNDER ASSAULT"

The new conservative majorities in Congress and the state Legislature are...pushing to slash civil law protections for individual citizens who have been injured through the negligence of others.

At the federal level, ...so-called tort reform... translates into taking away elements in the American judicial system that help the little guy.

One proposed change is the imposition of the "English Rule," which would require that losers in civil suits pay their opponent's legal fees.

It seems fair enough on the surface, winner-take-all, right? Besides, shouldn't there be redress for those wrongly accused? Shouldn't the object of a frivolous lawsuit have some mechanism for recovering the costs of defending himself? Already there is such a mechanism. Judges can award such costs now. And consider the downside of the "English Rule." Who would dare take on some industrial giant such as General Motors or Dow Chemical if they run the risk of paying those companies' lawyers $300.00-per-hour legal fees? The risks of losing a product liability suit are great enough to prevent any abundance of frivolous suits without this punitive club put in the hands of corporate bullies.

The contract also would allow federal pre-emption of state law in product liability cases. This would likely mean that Washington State's hard-won product liability disclosure law could be tossed aside by federal fiat. That law forbids the sealing of product liability settlements that would deprive the public of important safety information. This, from the folks who say they want to bring government control closer to the people?

At the state level, a gaggle of special interests called the Liability Reform Coalition wants to slap a $500,000 ceiling on the amount a jury can award to a plaintiff for so-called noneconomic damages.

First off, "noneconomic" is a misnomer, for it covers such things as disability and disfigurement, pain, suffering, and emotional distress that cannot only cost money to treat but make earning a living more difficult, if not impossible. The State Supreme Court already ruled in 1988 that a 1986 damage award cap was unconstitutional.

Also on tap is a potentially crippling assault on the state's injured worker compensation system. It would allow businesses to "self-insure" and thus opt out of the state program. The obvious result would be private insurance firms selling coverage for low-risk occupations and leaving the taxpayer-and the shrunken pool of participants-to act as the insurer of last resort for the most risky and most expensive occupational coverage.

Seemingly outrageous damage awards make headlines, but behind the headlines are stories of lives shattered, diminished, and impoverished by the callous acts of some large companies. These also are stories of everyday folks bucking the odds, fighting city hall, taking on Goliath and winning, thanks in large measure to specific protections and safeguards of America's civil justice system.

Efforts to weaken that system are undertaken in the best interests only of the Goliaths, and should be rejected.

Legal reform groups have been talking about the now infamous "McDonald's coffee case" and outrageous jury verdict to make their point. Everyone seems to know that a jury awarded $2.9 million to an elderly lady who was scalded after spilling a cup of McDonald's hot coffee in her lap.

This case is being used as an example for those who argue that the American justice system is "out of control," or that juries of ordinary citizens are not to be trusted to assess damages against the nation's richest corporations and their insurance carriers. But before you jump to any final conclusions, consider the rest of the story. The following is reprinted from an article appearing in the Seattle Post-Intelligencer on February 25, 1995. The author is Nicholas Corning.

Eighty-one year old Stella Liebeck was a passenger in her grandson's car two years ago when she bought a styrofoam cup of coffee at the drive-in window of an Albuquerque McDonald's. As the vehicle was stopped and parked, she held the cup over her lap and tried to remove the lid to add cream and sugar. It spilled, causing third-degree burns over six percent of her body, including her genitals, thighs, and buttocks. She was rushed to the hospital where she spent seven days enduring painful skin grafts and other procedures in the burn unit. Her medical bills exceeded $20,000.

Liebeck had never filed a lawsuit before. A lawsuit was started only after McDonald's refused to reimburse her medical bills.

Jury foreman Jerry Goens told The Wall Street Journal that before hearing the evidence, he and many of the other jurors weren't convinced as to why they needed "to settle a coffee spill." They began to take the case more seriously when they learned the rest of the story. Gruesome photographs of Liebeck's burns and skin grafts were augmented by internal McDonald's documents showing that the restaurant chain had received at least 700 complaints of coffee burns in the past decade. And McDonald's had settled many of these claims for more than $500,000.

At the trial, it was shown that McDonald's Operations and Training Manual required its coffee temperature to be maintained at 180-190 degrees. This is much hotter than coffee served at home or by many of McDonald's competitors. In fact, most experts agree that humans cannot drink coffee that hot without scalding their lips, mouth, and throat. A doctor testified at the trial that lowering the serving temperature to about 160 degrees would make a big difference, because it takes less than three seconds to produce a third-degree burn at 190 degrees and about 20 seconds at 160 degrees. Liebeck didn't have a chance because the hotter coffee saturated her clothing faster and burned her faster and more severely than liquids sold at palatable temperatures.

McDonald's executives testified the company knew its coffee sometimes caused serious burns, but decided not to warn customers. The company also said it didn't intend to change any of its policies.

McDonald's also paid $15,000 in fees to a human-factors engineer to testify at the trial. He told the jury that hot coffee burns were statistically insignificant when compared with the billion cups of coffee McDonald's sells every year. Jurors began to realize then that this case was about corporate profits and callous disregard for the safety of consumers.

After hearing all the evidence, the six men and six women on the jury decided McDonald's was liable. They awarded compensatory damages of $200,000, which they reduced to $160,000 after determining that 20 percent of the fault belonged to Liebeck for spilling the coffee. The jury then found that McDonald's had engaged in "willful and wanton conduct," the basis for punitive damages under New Mexico law, and assessed the equivalent of two day's companywide coffee sales (at $1.35 million a day) for a verdict totaling $2.9 million.

The trial judge later reduced the punitive damages to $480,000. The case was appealed by both parties but has since been settled by mutual agreement for an undisclosed amount. The end result? Liebeck recovered all her medical expenses, paid all her costs and attorneys fees, and still received reasonable compensation for her pain and suffering.

The public also benefitted from the lawsuit. A post-verdict investigation revealed that the Albuquerque McDonald's had lowered its coffee to a much safer temperature of 158 degrees.

There will always be cases in which, on the surface, a jury verdict seems outrageous. But as in the McDonald's case, the facts are often far more complex. Our civil justice system was carefully constructed to protect the interests of both plaintiffs and defendants. In the name of "regulatory reform," let's not make hasty changes that are certain to harm the interests of consumers and injured people.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

E. Paul Giersch
Attorney at Law

John R. Alexander
Attorney at Law