August 03, 2004

Pet Peeve

by PG

The Curmudgeonly Clerk returns to that hoary old stick of the tort reform movement: the McDonald's hot coffee case. He does so in order to refute arguments from bloggers who have latched on to a couple of new-to-me ideas: 1) the woman's sweatpants were really the cause of the third degree burns on her thighs and pelvis; and 2) if hot coffee may cause burns, and those burns may cause lawsuits, then legislatures surely would ban the product. If there is no such ban, then the product must not be dangerous.

Part of the public mystique of this case is that the plaintiff received so much money for what seems like a trivial incident. However, originally she just asked McD's to pay for her medical costs, which doesn't strike me as unreasonable. McD's refused, the case went to trial, the jurors saw the company as monstrously uncaring and irresponsible ("negligent," in other words) and penalized McD's.

What always amazes me in any discussion of the plaintiffs' bar is the complete, yet covert, contempt that the typical tort reformer has for juries, which contempt he shifts onto an easier target (trial lawyers). Why question the good sense of the 12 average men and women who served on the coffee jury -- or even the integrity of the elderly woman who brought the case -- when you can vilify the lawyer instead? After all, the line doesn't go "let's kill all the jurors/ plaintiffs." Yet it is the jurors who chose to find McDonald's guilty and to impose the $2.9 million penalty; it is the plaintiff who chose to sue.

Even assuming stereotypes about ambulance-chasing attornies, no lawyer can force a plaintiff to bring a case, any more than she can force a jury to render a favorable verdict. But from the rhetoric of the tort reformers who hate the plaintiffs' bar, and who consider John Edwards dismissed with the epithet "trial lawyer," an intelligent Martian would think that attornies are the whole system, instead of the cogs in the machine that enable plaintiffs to bring suits and juries to understand them.

August 3, 2004 08:16 PM | TrackBack

I cut myself slicing a bagel a couple of months back. Should I ask the knife and bagel manufacturers for my medical expenses and the hours I lost going to doctors? That McDonald's refused to pay medical expenses for someone who spilled coffee on herself hardly seems unreasonable to me.

The plaintiffs' bar has a great deal of culpability for the Liebeck verdict, not least because they cheerfully defend it as correct. It would be one thing if ATLA said "Stella Liebeck should not have recovered, but this is an aberration that shouldn't reflect how we think about the tort system." Instead, ATLA says "Stella Liebeck recovered, and she deserved to do so, and anyone who says otherwise is part of a conspiracy to deprive you of your rights." ATLA thus merits criticism.

By the way, who argued that "the woman's sweatpants were really the cause"? I certainly didn't, and I was the one who introduced the issue of the sweatpants into the equation. I merely noted that there wasn't a principled theory of tort law that held McDonald's liable but exonerated the clothing manufacturer--both are, trivially, sine qua non causes, though not proximate causes, of Ms. Liebeck's injury.

Posted by: Ted at August 4, 2004 12:31 AM

I think it's a pretty shaky interpretation of products liability law that suggests that no "principled theory of tort law" could possibly distinguish, in terms of manufacturing defects, the difference between dangerously hot coffee and sweatpants that fail to be coffee-proof.

But, speaking on behalf of Martians everywhere, intelligent or otherwise, I'd rather we not be dragged into this.

Posted by: Wings&Vodka at August 4, 2004 01:20 AM

"no lawyer can force a plaintiff to bring a case,"

Bull----. Lawyers bring class action suits for which they receive millions, sometimes hundreds of millions, of dollars in which a great many of the so-called "plaintiffs" never even hear they are plaintiffs.

As to juries, I don't hold them in contempt... I hold the jury selection process in contempt. It allows lawyers to stack the jury which the lesast intelligent and the most easily manipulated. A jury of my "peers" would have understood that calling 700 burns out of millions of coffee cups a day "trivially different from zero" was a statistical truth making the coffee **safer than driving to work everyday**, but the people on that jury interpreted it as "McD doesn't care about the little guy."

This case should have been thrown out the day it came to court - spilling a hot liquid on yourself is your own fault and no one else's.

"If there is no such ban, then the product must not be dangerous."

Wrong - if there is no ban, then it is not negligently dangerous. Horrendously dangerous things are sold everyday (guns, automobiles, and airplanes, just to name a few), but they are not negligently dangerous - there danger is understood and accepted. People who truly don't understand that hot coffee can burn you should be wards of the state due to their lack of mental capacity, and I mean that quite seriously.

If I open the hood of my car while it's running and place my hand inside, whose fault is the resulting injury. The only acceptable answer is MINE. Same with coffee.

(Now, if the cup fails in some way and hot coffee is spilled on me due to that, I can imagine some kind of suit against the cup manufacturer, analogous to the car engine coming through the dash and injuring me, but that's not the case here.)

Posted by: Deoxy at August 4, 2004 10:26 AM

1. Not to be a nudge, but McD’s was “liable,” not “guilty”.

2. My problem with such verdicts is the fact that the supplier is being sued for damages based on an inherent quality of the product. Presumably, coffee is supposed to be hot. If the plaintiff wanted cold coffee, she should have ordered iced coffee. I know the argument presented was that the coffee was “too hot”.

That argument, to me, is just silly. Even if coffee was the “correct” (whatever that is) temperature, it could have burned the plaintiff. Regardless of the temperature of the coffee, everyone seems to ignore the fact that the plaintiff spilled it on herself. The McD’s employee did not spill it on her. Perhaps she should not have been driving with coffee at all. Yes, many people drive with cups of coffee. Most don’t spill in on their groins.

It makes me think of the lawnmower example. When some…ahem… person reached under the covered blade while the blades were still spinning. He lost his fingers. He sued the manufacturer and won. Hence, we now have lawnmowers with fluorescent yellow stickers warning us not to put our hands under the shield while the blades are spinning. C’mon. The cutting blades are the essential feature of the product. Without that feature you have a big, bulky, slow go-cart or a loud, gas-consuming exercise machine. I think it is completely legitimate for the manufacturer of lawnmowers to assume that consumers understand the danger of the product – since that inherent danger is the very reason one would purchase and use the product. If you require a warning label to understand that a lawnmower will amputate you, perhaps you have no business using the machine.

Cases like this only 1) encourage a sense of entitlement; that is to say, nothing is my fault and everything bad that happens to me must be the fault of someone else, and 2) creates the notion that people are stupid.

If plaintiffs like this are “typical” of the population at large, it’s understandable that juries would award large verdicts. Back in a former life (when it wasn’t so difficult to get out of jury duty), an “artsy” colleague of mine was fond of saying: “A jury of my peers. Why would I want to be judged by people too dumb to get out of jury duty?” While intelligence has little, if any, bearing on one’s ability to escape jury duty, the general notion holds true. If I were ever a defendant, I don’t think I would want to be tried by a jury of my peers. No way. Sympathy plays far too great a role in deliberations.

For my part, I don’t think that “tort reform” as most people sling that phrase is required. We must simply stop idiotic cases from going to court.

I agree with Deoxy: “If I open the hood of my car while it's running and place my hand inside, whose fault is the resulting injury. The only acceptable answer is MINE. Same with coffee.”

Posted by: Fool at August 4, 2004 11:24 AM

1. W&V: So what is the principled application of tort law that distinguishes between coffee that is dangerous because it is possible to burn oneself on it and sweatpants that are dangerous because they fail to repel spilt coffee? All I see is an ipse dixit from you.

Simply put, every rationale for holding the coffee manufacturer liable--foreseeability, danger of injury, history of injuries, unexpectedness of degree of injury, lack of warning--is equally applicable to the manufacturer of the sweatpants. It's not enough to say that there's an intervening cause between the clothing manufacturer and the injury, because there's also an intervening cause between the coffee maker and the injury. Nor is it enough to say that the sweatpants' absorbency is not the proximate cause of the injury, because the same is true for the coffee.

So: is it a jury question? Or can a court throw out a case against the clothing manufacturer? And if the court should throw out the case against the clothing manufacturer before it gets to the jury, why shouldn't it throw out the case against the coffee maker?

2. Fool: what's your proposal to stop "idiotic cases from going to court"? And, out of curiosity, why would such a proposal to reform the tort system not be tort reform?

Posted by: Ted at August 4, 2004 01:48 PM

My proposal would simply be to not let such cases get to a jury. I admit that the lawnmower example may be a little easier to justify as “idiotic,” but the principle is the same. You buy a lawnmower to cut just as you buy coffee to drink a hot beverage. My broader concern in these types of cases is that we are becoming a nation of people who abdicate personal responsibility in favor of getting a quick settlement from a deep-pocketed company.

Perhaps a different example is in order: the pharmaceutical industry. There are tons of class action lawsuits pending against pharmaceutical companies. For these purposes, we will ignore lawsuits based on SEC violations, false advertising and the like. We shall focus exclusively on lawsuits claiming damage by a pharmaceutical product.

While it would be great if the world was a perfect place it is not. Lawsuits against drug companies presume that every drug made available will have absolutely no side effects. This is an untenable position. Everything has its tradeoffs.

So, for example:

The year is 1995. Cancer Y is a relatively uncommon – though not unheard of – form of cancer. As of 1994, no chemotherapy product or other pharmaceutical has shown any effectiveness in treating Cancer Y. Moreover, the longest anyone has ever survived – at any stage of Cancer Y – is 3 years (36 months).

In 1994, Peter Patient is diagnosed with Cancer Y. It is in stage 2; that is to say, it is relatively advanced. His doctors predict that Peter will not live beyond 1997 even with then-available radiation therapy.

Also in 1994, BPC (“Big Pharma Company”) has completed clinical trials for its revolutionary new cancer drug, OncAway. OncAway seems to be effective in treating a number of different types of cancer, including Cancer Y. Also, clinical trials did not identify any significant adverse side effects. Unfortunately, Peter was not diagnosed early enough to participate in clinical trials for OncAway. However, in 1995, OncAway, having received FDA approval, becomes commercially available (by prescription, of course) for cancer treatment.

Peter’s oncologist becomes aware of this potentially revolutionary drug and, also in 1995, decides to put Peter on OncAway. Although benefits were not seen immediately, by August 1995, Peter is feeling much better. While Cancer Y has not shrunk, OncAway has successfully retarded the spread of Cancer Y in his body. This is revolutionary.

After several years of successful management, in 2002, Peter begins to feel “not himself.” He feels a little weak and lethargic. There are other symptoms that are irrelevant to our hypothetical. He calls his oncologist who brings Peter in for additional tests. Fortunately, it seems that the cancer is still under control and has not spread. However, Peter continues to feel weak.
After a battery of additional tests, it seems that Peter is suffering some liver damage. Coordination between cancer centers reveals that a number of other patients who have benefited from OncAway have also suffered liver damage.
Regrettably, in 2003, Peter succumbs to liver failure – not cancer. Later in 2003, it is – as conclusively as can be – determined that prolonged use of OncAway does in fact cause liver damage and, in some cases, liver failure. Finally, it is likely that OncAway did in fact cause Peter’s liver failure.

Subsequently, Peter’s wife and two children file a lawsuit against BPC alleging wrongful death and all the “standard” ancillary claims. Other families of patients who suffered liver failure from using OncAway also file similar lawsuits. In early 2004, the cases are consolidated and granted class action status.

[Note: I think this is a very realistic hypothetical. I also like this hypo since it’s easy to despise drug companies.]

What exactly is the damage suffered? It is agreed that, without OncAway, Peter would surely have passed away by 1997, if not sooner (remember the cancer was in stage 2). Use of OncAway extended Peter’s life 5 years beyond his life expectancy without OncAway treatment.

Admittedly, Peter’s death was tragic. However, taking as fact that OncAway caused his liver failure, it also extended his life by 5 years. Thus, for me the question is: What damage has the family suffered? Peter’s death? Well, yes, but without OncAway, he would have died in 1997 or earlier. Based on the facts, that’s a given. But, compared to what he gained – 5 extra years – is his family really “damaged”?

It seems to me they were not. They had their father and husband with them for an extra 5 years. Again, yes, it is unfortunate that Peter died. And, yes, OncAway caused it. Legally, “but for” his use of OncAway, he would not have survived for those 5 additional years.

While arguments can be made that “BPC knew of the liver issues,” or that “OncAway was not sufficiently tested before becoming available,” the fact remains that it succeeded in doing what it promised: It extended his life. Also, it’s not like Peter forwent using an alternative drug (there was none) that would have extended his life expectancy (perhaps not as much as 5 years), but that did not cause liver complications.

While I certainly empathize with Peter and his family, I just don’t see how BPC should be liable to his survivors. Everything’s a trade-off: Peter could have taken no treatment and survived 3 years, only to succumb to Cancer Y. Alternatively, he could have tried OncAway, which extended his life an additional 5 years, but caused him to suffer liver failure. Without commenting on the relative painfulness of liver failure to cancer, it seems that an extra five (5) years of life is an immense benefit – not damage.

The point being that it is nearly unheard of that one drug will have zero side effects. Everything is a trade off. If you choose to drink alcohol in excess, you may get an immediate high, but you ability to function may be impaired. Moreover, your repeated abuse of alcohol may cause additional side effects. The same can be said of smoking, or any number of other activities. Still, you make the choice the engage in those activities.

In the above hypothetical, Peter could have refused OncAway. In which case, he would have died in 1997. Instead he lived an extra 5 years. It was his choice. And, despite the significant benefit Peter secured from use of OncAway, his family still sues. Despite the huge benefit, the company finds itself defending a class action lawsuit.

On these specific facts the case should not go to a jury. If BPC knew of the side effects (which is not part of the fact pattern), my opinion would likely change.

In the coffee example, the plaintiff and the defendant knew the coffee was hot. It was hot whether spilled or not. Presumably, even if it wasn’t too hot, the plaintiff would still not have intentionally spilled it on herself.

Turning to Ted’s question about tort reform, the way that phrase is thrown around implies capping damages, etc. I do not think that capping damages is the way to go. By placing a cap on damages, truly egregious conduct may be…eer…encouraged. If a person or company behaves egregiously, it should not be “protected” by damage caps. If one party’s egregious conduct (e.g., gross negligence or intentional conduct) causes another serious injury, I don’t think that that plaintiff’s damages should be capped because others bring frivolous lawsuits. [Of course, I don’t think that failing to put a warning on a lawnmower or serving coffee that is hotter than expected arises to this level of egregiousness.] Contrary to typical notions of tort reform, I think that courts should be more willing (or directed) to throw out silly cases.

The way were going, soon I’ll be able to sue the government doing roadwork or another driver who caused an accident on the highway for making me late for a job interview. As the proximate cause of my delay, I should be entitled to sue. Under the coffee, lawnmower, pharmaceutical theories of liability, I should be able to sue.

Thus, I don’t think the black letter law needs amending. I think we need to apply the current law more scrupulously or conservatively. The practical problem, of course, is once that gate is open how do you close it absent legislation (i.e., tort reform)?

Posted by: Fool at August 4, 2004 03:27 PM

Sigh. There was a time when an ipse dixit from me was enough.

Last I checked, it was the job of sweatpants to absorb liquids. One might even go so far as to say that a pair of sweatpants that didn't absorb liquid, but instead allowed sweat to run down your leg and pool in your shoes, would be defective. Though I understand all of McD's arguments about people liking their coffee effing hot, I think it's at least harder to argue that part of coffee's intended function requires that it be served at scald-happy temperatures.

Surely a jury could go either way on the two arguments, but I don't believe that they're as inextricably linked as you suggest.

Posted by: wingsandvodka at August 4, 2004 04:33 PM

Even assuming a jury could "go either way" on liability, I still refuse to accept that a septagenarian crotch burn is worth $2.3 million.

Posted by: Fool at August 4, 2004 04:36 PM

I was actually responding to Ted, but I'd have to agree with Fool that a septuagenarian crotch burn isn't worth 2.3 million. But if the crotch belonged to someone whose livelihood was a little more crotch-dependant?

Posted by: wingsandvodka at August 4, 2004 05:04 PM


"But if the crotch belonged to someone whose livelihood was a little more crotch-dependant?"

As an entirely unrelated humorous aside, that's got to be one of the best quotes for taking out of context that I've ever heard. :-)

As to the temperature of coffee, as someone who worked in the food business, I can say with complete certainty that the coffee was not "too hot", or at least not enough that it matters.

The STANDARD serving temperature for coffee, as told to me by the head of the cooking staff at the restaurant I worked at (a professional cook) is 190 F. That leaves at most 22 F before the coffee starts boiling away. Simply pouring the coffee from the carafe into the cup would cool it significantly from boiling, assuming it was ven that hot to being with (which it almost certainly wasn't, as that burns the coffee, and every coffee drinker I've ever talked with says McD's used to have really good coffee before this case).

Having also checked the record on coffee temperatures (and the results of Whoever v Bun-o-matic, which was basically the same case only it got thrown out), we find that the minimun temperature coffee is normally served at is 170 F, with a defined range up to 205 F, above which it is not recommended to go BECAUSE IT IS DETRIMENTAL TO THE TASTE OF THE COFFEE.

In short, if this person had ever bought coffee from any restaurant anywhere or used a home coffee system of any kind, they would know that (all together now) COFFEE IS HOT, and that's not a bug, it's a feature.

Spilling the coffee on yourself is entirely your own fault. The temperature of the coffee is only relevant if it is negligently too hot, which is essentially impossible as a matter of physics.

Stella has my sympathy... or she did, before she screwed the US population of McDs coffee drinkers.

One last thing: regarding "history of injuries"... as I said before, 700 cases. Wow. Considering how many cups of coffee they serve daily, you're morely likely to be struck by lightning.

That makes it a particulary SAFE product, not a dangerous one. And for this McDs is PENALIZED?!?


Posted by: Deoxy at August 4, 2004 06:16 PM

This is to the person who brought up class actions and how lawyers force clients to bring cases.

1. Many classes are certified by the defendents.

2. There are procedures for opting out of a class.

In general, plaintiffs' counsel in class actions provide all of the costs at first. These cases take years, and often cost millions of dollars to litigate, thus, a portion of the winnings go to pay back the original cost that the attorneys paid out. It ain't all profits!

Posted by: expatlse at August 5, 2004 06:52 AM

One last thing: if juries are too dumb to decide personal injury cases, would people also be willing to say the are too dumb to decide the ultimate punishment--the death penalty?

Or do they somehow gain intelligence for criminal cases?

Posted by: expatlse at August 5, 2004 06:56 AM

Regarding juris in criminal cases:

Part of the problem in civil cases (expecially the ones with enormous verdicts) is that they are very often against corporations (faceless, with deep pockets), and the plaintiff is chosen to be as sympathy-generating as possible.

There have actually been cases where the jury admitted that they don't think the defendant is really guilty or liable or anything, but they return a huge mentary verdict for the plaintiff because the defendant is unsympathetic and can afford it.

In the criminal justice system, there is actually a person being sentenced, and no one directly benefits from it.

That doesn't make it all better (especially in rape cases and some murder cases), but it helps a lot.

Posted by: Deoxy at August 5, 2004 01:49 PM

Sorry, "Fool," but you misapprehend two points in your posting of 11:24 a.m. on 4 August. I hope that neither of my objections seems "frivolous."

One. Concerning the McDonald's Coffee Lady you wrote that "... Perhaps she should not have been driving with coffee at all. Yes, many people drive with cups of coffee. Most don’t spill it on their groins." Ms. Liebeck was NOT driving at all (her grandson was) and her car was not moving when she spilled the coffee. Her car was parked at the side of the McDonald's lot when she spilled the coffee while trying to add sugar and creamer.

By the way, testimony at the New Mexico trial ten years ago established no "correct" temperature at which McDonald's should have held its coffee. Instead, plaintiff's experts estimated the speed with which coffee at high temperatures inflicts 3rd degree burns. Their testimony gave the 79-year-old Liebeck between 2 and 7 seconds to get the approximately 175-degree coffee off her groin and buttocks before full-thickness burns. Coffee from, say, a "Mr Coffee" would take MINUTES to inflict 3rd degree burns. That may be unimportant for your larger points but I thought you might want to know.

Two. You then cited an urban legend! "It makes me think of the lawnmower example. When some…ahem… person reached under the covered blade while the blades were still spinning. He lost his fingers. He sued the manufacturer and won." You will find this alleged litigation on pp. 163-164 of "Too Good To Be True: The Colossal Book of Urban Legends." Aetna featured this yarn in an advertisement regarding products liability litigation. This was not the last time that insurance companies made up stories to discourage litigation on behalf of consumers.

Moreover, I do not understand your ensuing comment: "... we now have lawnmowers with fluorescent yellow stickers warning us not to put our hands under the shield while the blades are spinning." So what? Does such a warning of an admittedly obvious peril greatly increase the cost of the mower? If the sticker so offends you, remove it!

I was amused years ago that a cardboard screen that I used to keep the sun's rays off my dashboard warned me not to drive with the sunscreen in place. I suppose I could have cursed our litigious society and screamed that some swine had probably sued successfully over an accident caused by cardboard in front of the driver's eyes. Rather, I had a good laugh every time I erected the screen.

Some of your points were well taken, "Fool," but you subscribe to "facts" that ain't true.

Posted by: JAFO at August 5, 2004 02:02 PM


You're confusing Fool's example of the lawnmower injury to fingers with the urban legend involving the lawnmower used to trim hedges. The latter is an urban legend, but the former is not. Indeed, no joke, the Center for Justice & Democracy trumpets a successful lawsuit against a lawn mower manufacturer for finger amputation as an example of "Lawsuits That Protect Us All"; this "News You Can Use"-style website refers to others, and encourages people to sue if they've been injured by their lawn mower. (There are tens of thousands of lawn-mower injuries every year.)

Posted by: Ted at August 5, 2004 02:12 PM

By the way, JAFO, speaking of checking facts, you've cut and pasted word-for-word untrue facts from ATLA's web site (or from someone who copied ATLA's misleading "fact" page) that have long ago been refuted on

Posted by: Ted at August 5, 2004 02:14 PM


"This is to the person who brought up class actions and how lawyers force clients to bring cases.

1. Many classes are certified by the defendents.

2. There are procedures for opting out of a class.

In general, plaintiffs' counsel in class actions provide all of the costs at first. These cases take years, and often cost millions of dollars to litigate, thus, a portion of the winnings go to pay back the original cost that the attorneys paid out. It ain't all profits!"

So, regarding point 2, the LAWYER brings the case, without my knowledge or permission. Hopefully, I might har about it and "opt out", but for many people, the first thing they hear about a class action IN WHICH THEY ARE A PARTICIPANT is a letter with a check for $0.38 or a coupon for 1 dollor off their next car purchase. In short, Yes, the lawyers do it all by themslves.

And this:

"In general, plaintiffs' counsel in class actions provide all of the costs at first."

They invoke all the costs, and so they make all the money, supposedly for my benefit, right?!? Well excuse me if I don't think that me getting a very slight dicount (often equivalent to what's avaible in the F------ newspaper, and for a product I don't want because it didn't work anyway) while the lawyer walks away with millions of dollars is remotely related to "justice".

It has much more in common with a shakedown.

Posted by: Deoxy at August 5, 2004 02:23 PM


"Coffee from, say, a "Mr Coffee" would take MINUTES to inflict 3rd degree burns."

No, AS I HAVE REPEATEDLY POINTED OUT AND PEOPLE KEEP IGNORING, home coffee pots range have almost exactly the same temperature range as professional stuff - 170 F to 205 F.

And yes, people actually have lost fingers to lawnmowers - check your own "facts" before you question the facts of others.

Posted by: Deoxy at August 5, 2004 02:30 PM


Thanks for the comments. To the point about her grandson driving, it’s somewhat immaterial to the thrust of my argument. The point is: No McD’s employee spilled it on her. Indeed, if you are correct that the car was stationary, then, from my perspective, it only reinforces the point that she spilled the coffee on herself – fumbling with cream and sugar. Though I may not be intimately familiar with all the facts, the McD’s employee did not cause the spill. And given no one threw scalding hot coffee on her (in other words, she should accept some responsibility for spilling the coffee), $2.3 million seems incredibly high – again, for a septuagenarian crotch. So, all told, whether she was driving or not, the spill itself was her fault. That was the point being made.

I certainly wasn’t the one pressing the point of the “correct” temperature of coffee. Thus, I intentionally used the words “hot,” “hotter” and “hotter than expected” as relative terms. Again, my point was whether coffee is hot or hotter, you still would not want to spill it on your crotch. Thus, Mrs. Liebeck would presumably have exercised the same degree of care (caution, whatever…) in handling hot coffee or hotter coffee. The argument “If I knew the coffee was that hot, I would have been more careful” just seems implausible. Coffee is hot. One should take care on to spill it on oneself.

With thanks to Ted for coming to my aid, the hands under the lawnmower is real life. However, it’s easy to understand why one would believe it to be an urban legend. Let’s assume, arguendo, it is an urban legend. It makes the point – as would any hypothetical. That aside, I am not offended by the mere presence of the yellow sticker. I am offended about the fact that without that yellow sticker a plaintiff can be entitled to damages – or more damages - by claiming that absence of that yellow sticker somehow constitutes a breach of the manufacturer’s duty. To me, that is incredible. Whether the cost is great or incidental to put the sticker there, the fact that failing to put a sticker warning of dangers of which every “reasonable person” should be aware can lead to extraordinary exposure and liability is…in a word…wrong. That’s what bothers me about the sticker – not the simple fact that it’s there.

Turning to your personal example of the cardboard sun screen, I agree that the warning advising you not to drive with that in place is amusing (or, perhaps more appropriately, ridiculous). I can certainly laugh about it.


Let’s assume you owned a sun screen that did not warn you not to drive. Let’s further assume you start the car and pull out on the road with the sun screen in place. [Let’s say you stick your head out the driver’s side window to see where you’re going.] Then, not seeing a stop sign, you plow into another car that had the right of way. Then, in true American style, you sue the maker of the sun screen claiming that you did not know it was dangerous to drive with the screen in place.

In my opinion, that is ridiculous. I view the coffee case, the pharmaceutical case, the lawnmower case in the same way. Take some responsibility for your own actions. [Not you, personally.]

I guess, in a nutshell, I find it incredibly unfair that third parties are expected to cough up large jury awards or settlements for what I view as someone’s own stupidity.

Posted by: Fool at August 5, 2004 03:04 PM

Ted, thanks for the tip (no pun intended) regarding the lawnmower matter. I shall look into it at overlawyered and/or CJ&D.

I did not cut/copy and paste anything, but I'll check out ATLA's website. I find it improbable that anything that I composed at the keyboard matches anything at ATLA, but I shall need some time to figure out exactly which facts you claim I cribbed.

Fool, your moniker must be ironic. I hate to break the news but you're no fool, buddy.

I acknowledge Fool's example about my cardboard screen (Fool, you err if you think I drive much better without it) but wonder how common any awards in such a case would be.

Fool, the initial award to Ms. Liebeck was closer to $2,700,000 than to $2,300,000 but you know she never got that. The judge reduced the punitive damages to $640,000 within a month. I leave undiscussed the question of why even one cent of such money should have gone to her if she and McDonald's had not settled.

Posted by: JAFO at August 5, 2004 04:36 PM

Deoxy overstates the case. A $30 coffee-maker will produce coffee at 135 degrees, but it will be crappy coffee. The lower temperature is not because the coffee-maker manufacturer is trying to be safer, but because one cannot make a cheap coffee-maker that adequately heats coffee. A $90 coffee-maker, like the ones Starbucks offers, will produce coffee at the same serving temperature of McDonald's or Starbucks.

The underlying point, again, is that coffee that is hot is not "defective." ATLA would have people believe differently, and it's dishonest of them to do so.

Posted by: Ted at August 6, 2004 10:40 AM


I'll leave it at LOL!

Posted by: Fool at August 6, 2004 11:41 AM

Ted, please accept in advance my apology for my ineptitude in both cyberspace and the blogosphere. I do not mean to cost you time to save me time.

I think I found the reference to a lawnmower accident in the Center for Justice & Democracy's PDF "Lifesavers: CJ&D's Guide to Lawsuits That Protect Us All." On p. A-57 the pamphlet recounts a case of a federal employee who fell or was thrown from a mower while shifting gears. Is that the case to which you referred?


Posted by: JAFO at August 6, 2004 01:11 PM

Some truth about class actions:

I would like to hear some. I hear lots of canards, but I want to know what the average verdict in class actions, accounting for size of the pool, etc.? What is average class size? My firm only handles federal employee classes, so we do not get any punitives. We are obviously not the norm.

I also would like to know how much defense counsel makes defending such lawsuits. Last time I heard, the attorneys in the Jones Day litigation department aren't exactly poor (I wouldn't be if I charged for every sticky note I used).

I guess I get tired of all the malarky. For every McDonald's-type case, I can give you a case where somebody died on the job due to the employer's negligence, and the family's award was under 100,000. I'd like to think a person is worth a little more than the size of a CEO's bonus.

For every "overpaid plaintiffs' attorney" I am told about, I can show you a defense attorney uses their unlimited resources to bankrupt the plaintiff, rather than get to the merits of the case.

For every comment about how great tort reform is, I can show you a plaintiff who was wrongly diagnosed and given a histerectomy, leaving her barren, and only being able to collect the cost of work she missed and a pittence for emotional harm. If a doctor's misdiagnosis prevents my wife from being able to carry our child, no one can tell me our pain and suffering is not compensable. I'd be the first one in line wanting to bankrupt and see that that doctor can never hurt another woman again.

Boy, am I ranting?

Posted by: expatlse at August 8, 2004 09:30 AM


There is one HUGE problem with your apparent thesis (that it's OK that this woman got a lot of money bcaus others don't get what they deserve).

A miscarriage of justice is rectified by committing an injustice against someone els.

There are miscarriages of justice on BOTH SIDES (you gave some excellent examples of each). They don't balance out - they are ALL wrong, no matter if the plaintiff or the defendant are wronged by the courts.

(Side note: "defense attorney uses their unlimited resources to bankrupt the plaintiff" doesn't happen the other way around because the defendant is such cases just settles, whether they were guilty or not. Otherwise, it's just the same - the side with the most money gets what they want. It's wrong when either side does it.)

Posted by: Deoxy at August 9, 2004 09:49 AM

My point is that I get tired of everyone jumping on plaintiff's attorneys as if defense attorneys hold some higher moral ground. They do not.

Part of the problem is that I do not see large punitive damages as per se a miscarraige of justice. As I have said before, show me where consumers have paid less for products and insurance in states that have enacted tort reform.

I can be persuaded about some class action abuses (e.g. Milberg Weiss securities litigation tactics: they had a list of plaintiffs that they could put on any complaint whenever stock prices spiked--this behavior led to Congress enacting higher pleading standards for securities litigation). Btw/ I agree with the securities litigation reform.

However, I am glad we can both agree that it is wrong when anyone papers the other side to death to avoid merits. Unfortunatly, to not do it as long as it is legal could be an ethical violation. My favorite is that I have heard of cases where Rule 11 motions have gone back and forth to the point that one party is filing a rule 11 arguing against the other party's rule 11 that was filed because their original rule 11 motion. Yeesh.

Posted by: expatlse at August 9, 2004 10:47 AM

"My point is that I get tired of everyone jumping on plaintiff's attorneys as if defense attorneys hold some higher moral ground. They do not."

The difference is that groundless suits are only brought by the plaintiff lawyers. In the court room, both sides use the same dirty tricks (running the other side out of money, etc), but plaintiff lawyers once avoided bringing groundless cases.

"As I have said before, show me where consumers have paid less for products and insurance in states that have enacted tort reform."

And as *I* said before, see Texas. Tort reform = lowered med-mal rates in less than a year.

(Side note: I don't expect lowered medical prices for the patients - but I DO expect fewer doctors to quit practice or leave the state over high med-mal, which was becoming a problem, so it's still a win for the patients, since they will have enough doctors.)

The reforms in Texas, BTW, were $250,000 in 3 categories - pain & suffering, punitive, and ... I forgt the other one, but it was something else like that. Economic damages are still uncapped.

The problem with caps is that thy hurt people in non-economic cases. Example: a young man loses the ability to have children because of a case of mal-practice (actual case I know of, malpractice is so obvious that it's not even contested)... What ECONOMIC damage has he suffered?

Unfortunately, the altrenatives are even worse, since we can't seem to find a way to moderate other forms of damages. Sorry is you get screwed, buddy, but it's worth it to have doctors to see when the rest of us are sick or injured.

Caps are thus like democracy - the worst possible form of government... except for all the others we know of.

Posted by: Deoxy at August 9, 2004 03:29 PM

I guess I do not know how many of these groundless suits are brought apart from anecdotal evidence (e.g. McDonalds case). I know the average punitive damages awards are pitiful compared to popular knowledge, but hey, McDonalds makes big news even to this day. There was even a Seinfeld about it.

I also believe that doctorse are committing more medical malpractice because of various things that have been mentioned (e.g. less patient time, HMOs have the final say on procedures, less time recooperating, insurance companies providing less for rehabilitation after serious procedures, etc.).

You only mention med-mal caps, but as far as non med-mal, products are not decreasing in cost. The companies pay out less, are able to essentially buy out serious consequences, and the consumers are in the same position as before.

Posted by: expatlse at August 9, 2004 11:42 PM
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