Corporate America and its special-interest Army across the country have engaged in a lengthy campaign to distort the truth about lawsuits in America. They’ve worked for years to convince policy leaders to make it harder for people to seek civil justice and protect corporations from facing accountability when they hurt people.
They label legitimate lawsuits as “frivolous” and claim the suits “clog the courts.” In reality, because many only get paid if they win, attorneys carefully weigh the cases they take. This screening weeds out the cases that have little chance of success.
They paint Americans who have been harmed by corporate misdeeds as greedy people trying to hit “jackpot justice” in a “lawsuit lottery” by appealing to mythical “runaway juries” for large verdicts. They demonize the attorneys who serve as the people’s voice in these cases as “billboard lawyers.”
Beware of these words and phrases. They are designed and focus-group tested to manipulate on your emotions to sell bad policy to rob you of your right to have access to the courts.
Propaganda to Protect Profits Over People
Many of these buzz words have been used for decades in a methodical campaign to discredit people who bring legitimate cases to court. The ultimate goal is to protect corporate profits by creating an environment where it is easier for lawmakers to make it harder for hard-working people to file lawsuits against corporations.
High-paid ministers and many of our nation’s best propaganda factories worked to create and inject this kind of poisonous and misleading messaging into the national civil justice.
The Hole in the Hellholes Label
For example, the phrase “judicial hellhole” is brought to us from the message masters at the American Tort Reform Association (ATRA) — a group that The Center for Media and Democracy’s SourceWatch says is a “coalition of medical professional associations and various industry groups — such as from the chemical, tobacco and drug industries.”
In 2000, Public Citizen reported that internal tobacco company documents that became public during lawsuits brought by states in the 1990s against the major cigarette makers showed the tobacco companies supported ATRA, “its grassroots lobbying firm, APCO & Associates, state Citizens Against Lawsuit Abuse (CALA) and other activities to weaken tort laws in many states.” Public Citizen noted how ATRA and APCO “supply the CALA groups with strategic guidance, media training and pre-produced radio, television, print advertising and billboards designed for maximum media exposure and legislative impact.”
A 2007 New York Times story dissecting that year’s ATRA Judicial Hellhole report (that had South Florida at the top) noted: “The report was prepared by a business-oriented group that dislikes personal-injury lawsuits and big class-action awards.”
The article explains how the so-called “study” consists of anecdotes pulled from news reports and had “no methodology” in determining why South Florida was rated higher than West Virginia. An ATRA spokesman admitted the sleight of hand saying, “We have never claimed to be an empirical study. … It’s not a batting average or a slugging percentage. It’s no more or less subjective than what appears in The New York Times.”
The Hot Coffee Hoodwink
When you learn this, it’s not a surprise to discover that the famed McDonald’s hot coffee burned grandma story is nothing but an urban legend, carefully crafted by corporate interests to manufacture a relatable anecdote in the argument for why policy makers should make it harder for folks to sue.
It’s important to know the real story.
The incident happened on February 27, 1992 in Albuquerque, New Mexico. An elderly retired department store clerk named Stella Liebeck rode with her grandson to McDonald’s for breakfast. Ms. Liebeck’s grandson was driving the car and she was in the passenger seat.
They went through the drive thru and she ordered a cup of coffee. Her grandson parked the car, a 1989 Ford Probe — a model that did not have cup holders. Ms. Liebeck put the cup of coffee between her knees and took off the lid to add cream and sugar. That’s where she spilled the coffee on her lap.
The accident resulted in Ms. Liebeck receiving third-degree burns on her legs and genitals and going into shock. She spent 8 days in the hospital and required painful skin-graft operations. It was one of the worst cases her surgeon had ever seen.
Ms. Liebeck only wanted McDonald’s to pay her medical expenses and sued after they offered her $800 and refused to go to mediation.
“Too Hot for Human Consumption”
This case uncovered that McDonald’s required its restaurants to keep coffee at 180 to 190-degrees. Water boils at 212-degrees. According to the New York Times, during the trial, a burn expert testified that when 180-degree water hits skin, it could cause third-degree burns within 15 seconds.
In the decade prior to the incident, 700 people had notified McDonald’s that they had been burned by the restaurant’s coffee. According to a report in the Journal of Consumer & Commercial Law, during the trial, a McDonald’s executive testified that McDonald’s had chosen not to warn its customers of the possible severe burns its coffee could cause because “(t)here are more serious dangers in restaurants.” The report also notes that a McDonald’s human factors engineer characterized the number of hot coffee burns suffered by McDonald’s customers as “statistically insignificant” compared to the one billion cups of coffee sold annually by McDonald’s.
“There was evidence and argument about the Defendant’s knowledge that the coffee could cause serious, third-degree, full-tissue burns,” said Judge Robert H. Scott who presided over the trial. “Defendant McDonald’s knew that the coffee, at the time it was served, was too hot for human consumption.”
Punitive Damages: 2 Days of Coffee Sales
On August 17, 1994, after 7 days of testimony, the jury weighed the evidence and awarded Ms. Liebeck $160,000 in compensatory damages. To send a message to the company to reduce the temperature of its coffee, the jury awarded $2.7 million in punitive damages – the equivalent of two days of coffee sales for McDonald’s.
Eventually, the judge in the case reduced the punitive damages award reportedly to less than $500,000.
How the Victim Became the Villain
Seizing on the original $2.7 million punitive damages award, media sensationalized the news of the verdict. Scholars looking over the stories that came from the verdict note how many media carried the story only as a short “brief” article that, by nature resulted in underreporting of the factual details and overemphasizing the award.
The story spread worldwide and became fodder for columnists, late night comedians, radio talk show hosts, politicians and big business backed special interest groups like Citizens Against Lawsuit Abuse. According to The Center for Media and Democracy’s SourceWatch, cigarette maker Philip Morris has been a primary funder of Citizens Against Lawsuit Abuse and “they both funded and controlled the organizations through ATRA.”
“Six hundred and ninety-seven words in the Albuquerque Journal became 349 words in the AP and became as few as 48 words in various renderings in major metropolitan newspapers,” said John Llewellyn, professor of Communications at Wake Forest University in a New York Times review of the hot coffee case and its impact. “Forty-eight words can’t explain a lot and then coffee, woman, millions sounds like a rip-off, not like a logical consequence of a thoughtful trial.”
This is how the fairy tale of the hot coffee grandma was born. It’s a canard that has been worth millions to Corporate America’s coordinated campaign against civil justice accountability.
Learn More Before Deciding
As we have witnessed a move to stories that are often shorter and more sensationalized, Ms. Liebeck’s case is a cautionary tale why news reporters, producers and consumers should slow down and learn more facts about an issue before coming to a conclusion on any particular story.
Like with the prevalent anti-consumer messaging about “frivolous lawsuits” and “judicial hellholes” that come from the corporate community, when you learn all of Ms. Liebeck’s story, it’s clear lawsuits like the McDonald’s coffee case bring dangerous practices to light and often force corporations to change or end bad behavior. When that happens, we all benefit.
President Reagan often reminded people of the Russian proverb, “Doveryai, no proverya” which translates to, “trust but verify.” In an era where public attention is fragmented, it’s easy to give a cursory look at the news and accept reports framed by catchy buzzwords, memorable slogans, and pithy quotes as the truth.
These are red flags. See them as a caution signal to take a closer look at the issue, listen to the experts and learn more before coming to a conclusion.
Ryan Banfill is Communications Director for the Florida Justice Association. Follow him on Twitter: @RyBan1001.