Burned by the Courts

In 1994, a 79-year-old woman from New Mexico named Stella Liebeck sued McDonald's after she spilled a cup of the company's coffee on herself and suffered third-degree burns. A jury awarded her $2.7 million plus compensatory damages. As immortalized directly by countless late-night comedians and op-eds, and indirectly by Seinfeld, Liebeck's suit against McDonald's became an anecdotal warning against "frivolous lawsuits." As the story was usually told, a woman carelessly spilled coffee on herself while driving, got minor burns, sued McDonald's because the coffee was hot, and was awarded millions of dollars by a crazy jury. The idea that lawsuits are bad became ingrained within American political culture. But restricting access to the courts will not benefit most Americans.

Hot Coffee, a superb new HBO documentary directed by Susan Saladoff, points out that this politically potent narrative consists of half-truths and outright falsehoods. Liebeck's suit and the jury's decision were in fact far from unreasonable, and the misleading narrative about the case has helped corporate interests and their political allies make it more difficult for corporations to be held accountable in court.

Saladoff's film lays out the real story in lucid detail, and no matter how many times the suit was used in Jay Leno monologues there was nothing funny about it. Liebeck was not careless, but spilled the coffee when she, as a passenger in a parked car, took the lid off the cup. The spill did not cause a trivial injury, but severe burns that required multiple operations and skin grafts to treat. McDonald's, which served its coffee at 180 degrees, had received more than 700 complaints from customers, constituting a clear warning, but it nonetheless required its franchises to serve it at that temperature without warning customers.

Nor was Liebeck greedy or especially litigious. Her initial complaint requested only about $20,000 to cover her medical bills and other related expenses, and she took McDonald's to court only after the corporation offered a paltry $800 settlement. The headline-generating $2.7 million Liebeck was awarded in punitive damages (selected because it approximated two days worth of the revenues McDonald's makes by selling coffee) was reduced on appeal to less than $500,000. (The case was later settled for an undisclosed amount.) The Liebeck suit was a thoughtful attempt to seek appropriate redress for a serious harm, not about a clumsy woman trying to wring millions from an innocent corporation.

The popular narrative that grew around the Liebeck suit is what political scientists William Halton and Michael McCann refer to in their definitive book Distorting the Law as a "tort tale." Tort tales are narratives about lawsuits developed for the purposes of politics and popular culture, and as McCann explains are usually "either completely fictional accounts or highly fictionalized, reconstructed accounts of actual events." Substituting half-truths and outright falsehoods for actual facts made a joke of a sad story about a 79-year old woman who suffered severe injuries because of an unnecessarily dangerous product from a very wealthy corporation.

If tort tales were merely fodder for sitcoms and comedians, the distortions might be harmless. But these tales are often used (and sometimes created) for political purposes. A major strength of Saladoff's documentary is that she links the false narrative about the McDonald's coffee case to a larger - and pernicious - political cause. Tort reform groups funded by corporations have used the fictionalized portrayal of the Liebeck suit and other tort tales to compel legislatures to limit access to the courts and place arbitrary caps on damages.

Despite the arguments made on their behalf, such reforms have nothing to do with frivolous lawsuits but instead restrict lawsuits that have merit. These changes to the law, therefore, reduce the incentives corporations have to ensure that their products and actions do not harm ordinary people. It is not just winners of particular lawsuits who benefit, but other people who will be spared from harm because corporation have stronger incentives not to injure customers or employees. In a related development, conservatives have made limits on medical malpractice suits virtually the sole change to America's broken medical system they are willing to support. As Tom Baker's exhaustive research makes clear the idea that medical malpractice suits explain the rising costs to the American medical system are just as fictitious as most tort tales. Lawsuits, though, make a convenient scapegoat that can be used to shore up an essentially indefensible status quo.

It is also important to note the unique problems inherent in restricting access to the courts given the realities of the American political system. Many European states do even more to discourage litigation than most American states. But the barriers to litigation are generally combined with strong, independent state regulators who can police powerful corporations and restraint them from inflicting injury on less powerful individuals. It is possible to argue, as scholars such as Robert Kagan [http://www.amazon.com/Adversarial-Legalism-American-Way-Law/dp/067401241... have, that the European model is superior. But the comparison is irrelevant to the American context, because strong European-style regulatory bodies are not politically viable. Moreover, the same groups that seek to deny ordinary Americans access to the courts also want to further constrain the ability of federal and state regulatory bodies to police corporate misbehavior. Given the relative weakness of American regulators, restrictions on the ability of citizens to sue to redress injuries will have an especially negative impact.

The film describes the ways in which the tort reform movement is connected to a broader movement to lessen the political and legal accountability of corporations. Corporations in many cases have used alleged problems with the legal system to justify requiring customers and employees to submit to binding arbitration rather than civil court. When people do have access to the courts, they find that many state judiciaries - where judges are elected and eligible to receive campaign donations -- are heavily tilted towards business interests.

As is inevitable in a 90-minute documentary, there are issues - particularly the role of the media in distorting cases like Liebeck's - that deserve more attention. Viewers intrigued by the issues presented by Hot Coffee are urged to seek out the work of authors such as Haltom and McCann, Baker, and Stephanie Mencimer. But Hot Coffee - which provides commentary from many experts, including McCann and Mencimer -brings much-needed attention to another way in which American society is becoming more unequal.

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