The Morality of Litigation – Part II

August 15th, 2010

Remembering the Principles

(Part 1, ‘Forgetting the Principles’ is here and Part 3, ‘Enforcing the Principles’ is here)

By now, you’ve gotten your cup of hot, McDonald’s coffee as suggested at the end of my last post on litigation. Our court system was designed to compensate victims and rectify social injustices in America. These principles have been immortalized in songs like Neil Young’s “Southern Man”. However, the latest views of litigants has been concisely expressed in a country song written by West and Pahanish, (and sung by Toby Keith). This proclaims that America is so quirky, one can ‘Spill a cup of coffee and make a million dollars‘. Has litigation come to this? Instead of resolving society’s ills, it represents nothing more than greed? Since my specialized diet doesn’t permit me to eat in restaurants, I just made a call to a local branch of the McDonald’s restaurant chain. This company, sued when a woman suffered burns from spilling a cup of their coffee, does have warnings on their coffee cups. The employee answering the call humored me and read it out over the phone. It says, “Caution: Handle with Care – I’m Hot”. Here it is, captured in glorious technicolor.

Well, “D’uh”, as the kids say, appears to be the only appropriate response to that statement.

If you’re like millions of typical consumers, you’ve probably heard that a woman was burned when her coffee spilled and filed a law suit, an effort for which she was richly rewarded. That sparse, partial truth would tend to make us believe this was just another sign of greed on the part of litigants; slackers who search the globe for incidents they can take to court for personal gain. However, laughing at this suit before reviewing the actual facts is akin to drinking another beverage. That one is called ‘Kool Aid‘—a drink forever associated with people buying into harmful myths about their cultural groups.

Interestingly , the facts about this infamous suit against McDonald’s were presented for our consumption the Wall Street Journal (WSJ), well versed in the American corporate culture. Their account was written in defense of this litigant and against the company deemed by the court as having been reckless. Considering the WSJ to be a highly reputable source for these facts, their 1994 review of this matter was my primary source for this discussion and additional confirmations/details are offered by attorney Jon Mitchell Jackson, here.

To summarize: An elderly woman suffered extensive third degree burns within seconds of her coffee hitting her lap while seated behind the wheel of her car. Most adults would have a reasonable expectation of discomfort from the spillage of a hot beverage and accept mild to moderate burns as the natural consequence for such carelessness. However, such a spill should not cause the kind of damage seen in this case, requiring hospitalization and skin grafts. Patrons of this establishment have no idea that their brew is supposed to be maintained at or above 180 degrees, well above the temperature required to cause severe burns in very little time.

The article revealed that McDonald’s acknowledged this fact but considered the number of people who would be injured as insignificant. In keeping with this casual view of their casualties, they doled out more than a half million dollars in settlements to those customers deemed ‘deserving’ among the 700-plus complaints received about their coffee temperatures. In one startling bit of insight into this kind of corporate stance, the defense felt the woman’s advanced age made her skin more likely to sustain severe damage, thereby mitigating their responsibility. Isn’t the whole, ‘blame the victim’ thing going too far when you consign genetic diversity, age, and sex to the status of faulty human engineering (how dare that woman grow old!)? Perhaps the warning on the cup should read, “Caution: Contents potentially damaging to people over 70. Drink it while young and in full possession of your recuperative powers.”

Are you still waiting in line to purchase this particular brand of corporate Kool Aid?

Myths cannot support a population yet they are created because someone profits from them. Sustainable social and economic development requires an acceptance of reality. We prefer our myths even though their origins don’t rest in divinely inspired prose. Madison Avenue appears to have inspired most of this rhetoric. The myth of the free marketplace is just that, because markets were meant to serve humans in all our glorious strengths and weaknesses. Instead, human characteristics are ignored by corporations engaging in bad behavior for reasons of frank greed. Wasn’t McDonald’s able to generate healthy profits from a more temperate brew? Profits made from companies imposing heavy risks to their consumers can inflate those profits and yield a form of corporate obesity. Boards of directors may find it satisfying but the general population sustains inordinate levels of damage from hazardous goods and services when corporations choose to grow fat instead of strong. The culture of ‘never enough’, affects us all.

Risk taking behavior by our human citizenry should certainly be acknowledged. Perhaps we ought to consider whether it is careless to drink hot beverages in one’s car where movement and divided attention increases the probability of a spill. The jury reduced this woman’s award by twenty percent in recognition of individual responsibility. However, when you purchase a cup of coffee via the ‘drive-through’ window of a restaurant, one assumes the safety concerns to be no different than prior experience would indicate. The company could discourage such activity by informing customers of the unusually high beverage temperature or simply by requiring consumers to buy their coffee indoors.

The current warning on their cups insultingly maintains the joke that consumers are too dumb to apprise their own risks. It takes some degree of self-confidence and educational background to register a complaint when everyone around you is saying, “Of COURSE it’s hot, Stupid!” So this warning doesn’t educate but rather humiliates genuine victims and prevents us from demanding the information being intentionally withheld from us in commerce. We deserve to know what it is we are paying for in any transaction. Otherwise the commercial contract should be considered invalid because the terms aren’t clearly delineated. Cite the temperature on the cup or menu listing and then we’ll take it from there in terms of choosing safety or opting for optimal aromatic value. Frankly, I’d want also want to hear from a specialist in gastrointestinal medicine about the wisdom of ingesting foods above certain temperatures. However, that is for me to research once I’ve been ‘warned’ of unexpectedly high cooking temperatures.

Consumers are fortunate this woman didn’t suffer in silence. That is the custom of many stoic Americans, accustomed to being dismissed as whining wimps for needing access to medical care or objecting to the inclusion of carcinogens in our soaps. This is particularly true of women and members of minority groups. Complaining is yet another invitation to the dismissal of our competency to participate fully in American culture. Nor did this woman settle for the dismissal of her most reasonable request for compensation by the company before filing her law suit. That modest eight hundred dollars requested to cover medical bills and some of her suffering would also have left us in ignorance of how corporations have become the model of American citizenship. It is a testament to the fact that reasonable adults are willing to negotiate their problems outside of a court room. However, in this case, the other ‘party’ was made of paper, lacking the same anatomical vulnerabilities as the plaintiff, couldn’t ’empathize’.

Thank goodness an experienced lawyer was willing to conduct a competent investigation into the problem. Professional competence overtook the overconfidence of privilege in the matter lacking any rational foundation for it’s policy and for failing to recognize the harm they brought to this particular person. This lawyer’s careful scrutiny of the circumstances enlightens all of us about our need to scrutinize companies for their role in providing us with needed goods and services in good faith that the benefits and risks are clearly understood by their customers. Since we can’t trust our institutions to be honest with us, having public records of legal settlements would certainly reduce the number of people who are injured through hazardous products or non-disclosure of avoidable risks when enjoying one’s purchase. It would also benefit industry by allowing them to discount frivolous suits. If their policies are within the bounds of acceptable practice, good companies need not be pushed into making ‘pay-offs’ from baseless legal actions just to avoid adverse publicity.

The WSJ article has a wonderful discussion of jaded jurors who were prepared to laugh at this case themselves – before seeing the evidence. Jury duty is quite a wake-up call to our collective consciences. McDonald’s apparently refused a reasonable offer of settlement by the plaintiff’s attorney and then a proposed resolution in a court-ordered mediation. Their faith in the willingness of jurors to drink this brand of verbal Kool Aid was boundless, yet misplaced. We must again be grateful for that hubris because any sealed settlement would have resulted in further injuries. There is much to be learned from this case about corporations following such a path versus the respect that the owners, managers and employees of well-run, sustainable corporate entities are due for making the world turn.

A wake up call is required to counteract those ‘fast food’ misrepresentations of reality just as many municipalities are now requiring disclosure of fat and salt content for fast food to show how it differs from real or ‘slow’ food. We see many inexplicable positions dispensed in tweets, sound bytes, slogans on placards and on coffee cups, appealing to a fast food form of philosophy. Corporate deceptions about life-style choices being the cause of all ills is belied by their misbranding of many medications and foods as reasonable selections. The NY Times pointed out the “Smart Choice” label appearing on boxes of Fruit Loops cereal, despite sugar being the largest percentage of ingredients in that ‘food’. That certainly makes me wonder why it isn’t stocked on the shelves of the candy aisle of grocery stores instead of taking up space in the cereal aisle. Women are learning that statins don’t work well for them, despite the huge number of prescriptions given to both sexes for their ‘health’. Yet all we hear is how cholesterol is the enemy rather than the drugs used to fight it which may not be compatible with every patient’s physiology.

This NY Times article explains the use of settlements to induce makers of generic drugs to refrain from producing competing products with holders of expiring patents. The price of the original drug remains high while profits are shared among those whose very existence is based on the concept of competition in the marketplace. Consumers are damaged in multiple ways through this misuse of the legal process. If precedents in patent law for drugs were set through trials on these admittedly complex matters, this repetitive process harming the public would end. Leaving the question of patent expirations unanswered means consumer dollars pay for a ‘win’ negotiated by both sides. Under what system of government does a court decision harm individuals who aren’t even part of the process? The law genie has escaped from it’s constitutional wrappings and become another tool for earning money instead of setting guidelines for civilized behavior between ‘individuals’ if one wishes to refer to corporations as such.

Our justice system requires our full participation. Settlements are certainly preferable to prolonged and expensive trial ventures but not when they extend or institutionalize bad practices. Secrecy allows companies to pass these costs onto all their consumers. The McDonald’s trial might not have been necessary if any of their multiple settlements with other burn victims had become a part of the public record. Just a few of those made public might have been enough to prompt consumer watch-dog groups to warn citizens of that hazard. Perhaps multiple settlements might have led to an investigation into this industry practice. Of course, publicly recorded settlements might just have led this company to solicit professional advice and go on a moral diet, trimming some of the fatty profits derived from superheated beverages sold without disclosure of risk.

Having settlements entered into the public record would result in a change in our culture which has come to believe that anything, eaten in secret, has no calories. Corporate citizens suffer from obesity just as our human citizens but that can only happen in the ‘dark’.

Part III (Enforcing the Principles) will highlight my personal interest in these matters. I am not just an ‘Acceptable Risk‘, but also a litigant. I am the plaintiff in the following action:

Queens Civil Supreme
Index Number:  014425/2002
Case Name: RUBIN, BARBARA 3/P vs. MARATHON JEWISH COMMUNITY CENTER/PRO-TECH PEST CONTROL
Case Type:Negligence
Track: Complex

Yes, complex indeed but the principle at the heart of the suit – full disclosure—is far from complex. TBC

Postscript: Interesting article here at the NY Times describing new commitment to justice on the part of lawyers. An encouraging read.

Postscript: A documentary named “Hot Coffee” was made on cases like that one. A summation of the case is given here by relatives of that coffee case litigant and makes for a very eye-opening account of that story. (You-Tube)

Categories: Letters

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