Another side of the story

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

I recently watched the documentary film “Hot Coffee,” which premiered at the 2011 Sundance Film Festival. It gets its name from the case of Liebeck v. McDonald’s Restaurants which we are all anecdotally familiar with at least. This was the case where a McDonald’s customer, Mrs. Liebeck, spilled a cup of McDonald’s coffee on her legs, sustained severe burns and successfully sued McDonald’s, before ultimately settling after McDonald’s appealed.

The case is used as the poster-child of an out-of-control justice system where frivolous lawsuits are pursued and won on a regular basis. However, “Hot Coffee” paints a different picture; one where corporations engage in huge media campaigns to alter and distort our views of the justice system with the intention of pursuing “tort reform” which the filmmakers view as a misleading term which entails the waiver of constitutional rights.

Detailed facts of the hot coffee case itself are probably unknown to many of us. Many of us probably don’t know that Mrs. Liebeck sustained third degree burns over 16 percent of her body, disabled for months and needed skin grafted from her thighs to her private parts. Many of us probably don’t know that McDonald’s had a policy of serving coffee at between 180-190 degrees, which it was shown would cause third degree burns in less than 8 seconds. One of the reasons we probably don’t know this is that she was subject to a gag order after the eventual settlement and McDonald’s was not.

So, without expressing an opinion on what the verdict should have been, I think it is at least fair to say the lawsuit was not frivolous. However, that is the complete opposite of how this case is publicly perceived. The filmmakers look at how corporations try to exploit the public perception of frivolous lawsuits to push for tort reform which always entails limiting citizens’ constitutional right of access to the courts. They point to some congressional hearings on tort reform where the most commonly used phrase was “McDonald’s case” or “hot coffee case” despite very little in the way of actual research or empirical evidence.

Another case the film looks at is that of Jamie Leigh Jones, a former Halliburton employee, who claimed she was drugged and gang-raped by fellow Halliburton employees just four days after she went to work in Iraq. Her employment contract had a mandatory arbitration clause and the filmmakers analyze some of the problems with such clauses. First, arbitrators are often chosen by the corporate defendants so there are incentives for arbitrators to find in their favor in order to get their business again. Second, arbitrators usually do not have to offer written opinions detailing the reason for reaching the decision in a case. And finally, the appellate standard for arbitration decisions is often prohibitively high.

The filmmakers’ case against mandatory arbitration clauses is weakened somewhat by the jury’s finding in Ms. Jones’s eventual trial that the sex between Ms. Jones and the other employee was consensual after evidence emerged at trial suggesting many of her claims were exaggerated. However, interesting questions are raised in both of the cases discussed here and we, as lawyers, have a duty to consider questions of tort reform and its impact on our constitutional rights deeply and objectively before reaching a conclusion.


One response to “Another side of the story

  1. For another example of how weakened the plaintiff’s bar has become, read If you research the issue of bank liability for violent crimes involving ATMs, you’ll find that there has never been a case that went up on appeal and was published. The only way that’s possible is if the banking industry is paying off the plaintiffs before an appellate record can be created and getting a confidentiality agreement to keep the problem out of sight and out of mind.

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