McDonald’s Hot Coffee Lawsuit and Beyond:
The Tort “Reform” Myth Machine

by Jon Greenbaum

Perhaps you saw the Seinfeld episode in which lawyer Jackie Chiles encourages Kramer to sue over a cup of hot coffee. The show spoofed the reported $2.7 million awarded to a woman who had sued McDonald’s. Elaine’s reaction to Kramer mirrored what most people were saying: “Who ever heard of this anyway? Suing a company because their coffee is too hot? Coffee is supposed to be hot.” Of course Kramer, replies, “Yeah, but Jackie says the top was faulty.”

It’s a perfect morality tale exposing everything wrong with our litigious society whose members refuse to accept personal responsibility. The McDonald’s lawsuit was ridiculous, right? We’re all bearing the burden of higher insurance rates because there is an epidemic of lawsuits, right? Malpractice lawsuits are driving doctors out of business, right?

Well, not really.

Third Degree Burns
Here’s what the talk show pundits and columnists neglected to mention about the McDonald’s coffee burn case:

79 year-old Stella Liebeck suffered third degree burns on her groin and inner thighs while trying to add sugar to her coffee at a McDonald’s drive-thru. Third degree burns are the most serious kind of burn.
McDonald’s knew it had a problem. There were at least 700 previous cases of scalding coffee incidents at McDonald’s before Liebeck’s case.
McDonald’s had settled many claims before, but refused Liebeck’s request for $20,000 compensation, forcing the case into court.
McDonald’s heats its coffee to about 190º, 30-50 degrees hotter than other restaurants. Doctors testified that at 190º it only takes 2-7 seconds to cause a third degree burn.
McDonald’s knew its coffee was exceptionally hot but testified that it had never consulted with a burn specialist. McDonald’s rationale was that the coffee smells better at such scalding temperatures.
The Shriner Burn Institute had previously warned McDonald’s not to serve coffee above 130 degrees.

And so the jury came back with a decision: $160,000 for compensatory damages. But because McDonald’s was guilty of “willful, reckless, malicious or wanton conduct,” punitive damages were also applied. The jury set the award at $2.7 million. The judge then reduced the fine to less than half a million. Ms. Liebeck then settled with McDonald’s for a sum reported to be much less than a half million dollars. McDonald’s coffee is now served nationwide at the same temperature as most other restaurants.

The Lawsuit Crisis Myth
Mr. Bush is now pushing for tort “reform,” claiming that lawsuits are hurting the economy. On January 5 he demanded that Congress take immediate action to impose strict limits on medical malpractice litigation. Contrary to popular belief, since 1975 the number of lawsuits nationally has declined. Government data show that the median jury verdict for punitive damages was only $37,000 1996 significantly less than the $65,000 median award in 1992.

So, why are Newsweek and Time running cover stories about “Lawsuit Hell”? Why is there a common perception of a “lawsuit crisis”? Why is Bush talking about the need for tort “reform” (legislation to limit citizens’ rights to a jury trial or limit juries’ ability to set punitive damage awards)?

It wasn’t until the 1950s that lawyers began to win judicial precedents establishing corporate responsibility for injuries to workers and consumers. Corporations started to be held accountable and consequently their insurance companies were increasingly being forced to pay damages.

The insurance industry responded with a public relations campaign against “excessive awards.” Its strategy was to convince people who might sit on juries that there was a problem.

By the 1980’s, with the insurance industry in a slump, industry strategists moved beyond targeting prospective jurors, and took on the law itself. Their goal was to restrict citizens’ right to a jury trial. Their ad copy pointed out that “everybody pays” for overzealous lawsuits. The industry couldn’t very well attack consumer and environmental protection or victims. Instead they scapegoated the trial lawyers.

Dozens of tort “reform” measures were introduced in state legislatures. Teams of lobbyists mobilized to push these bills through state legislatures. The insurance industry mobilized right wing think tanks to focus on the “crisis.” They targeted journalists and circulated bogus statistics about the “costs of frivolous lawsuits.” Large corporations created fake grassroots groups (called “Astroturf”) like Citizens Against Lawsuit Abuse and set up chapters in local Chambers of Commerce.
Urban Legends

Anecdotes of bizarre lawsuits buzzed on the Internet, and major media outlets like U.S. New and World Report picked up on the stories without fact checking. Conservative columnists at smaller papers also ran with these urban legends of runaway jury verdicts. Did you hear the one about the man who sued Winnebago after setting his R.V. on cruise control and going to the back to make some coffee? How was he supposed to know the R.V. would crash? The fact that the incident never happened didn’t stop papers like the Weirton Daily Times in West Virginia from printing the story in a column calling for tort “reform.”

Will outlawing our right to sue grossly negligent doctors for punitive damages stop the escalating costs of health care? The non-partisan Congressional Budget Office figures that medical malpractice lawsuits account for one half of one percent of health care costs.

Would insurance rates go down? According to the American Insurance Association, “The insurance industry never promised that tort reform would achieve specific premium savings.” (March 13, 2002) and the American Tort Reform Association added, “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce rates.” (July 19, 1999).

What will tort “reform” accomplish? It will limit our ability to hold corporations accountable for their misdeeds. Corporate America has largely succeeded in buying up our legislators and capturing regulatory bodies. We must not let them wrest control of the judicial system as well.

Jon is an organizer with Metro Justice, a Rochester-based peace and justice organization. Metro Justice [] has 1,000 dues paying members in the Rochester area.