Conservative Populism and the McDonald's Coffee Case

[.Shane.]

Just to build on my previous post....

First off, if a lawyer or someone who knows the history of this could either coroborate or correct what I'm saying (and provide links, I am looking), it would be great...

Now, for discussions sake, I'll pick an arbitrary year, say, 1978. Before 1978 lawyers were barred by the Bar Assocation from advertising, esp. on TV. It was not deemed ethical by the profession. Eventually there was pressure from oversupply in the labor force (more lawyers than ever; which is, perhaps, the real problem) and a lawsuit bubbled up.

Keep in mind this is not free speech, but commerical speech.

The SC found that the Bar Association was illegally regulation legal speech. This, in turn, opened the floodgates for advertising, which in turn, drove the # of lawsuits, esp. frivilous ones.

I almost think this occured in the mid 80s as I distinctly remember noticing the sudden appearance of all these ambulance chaser TV ads.

Again, if anyone can add anything to this, I'd appreciate it.

 

[.Shane.]

I think I'm clearly as informed about the situation as any normal person would me. And I'm not talking about the first case ever, I'm taking about the first case that set off the lawsuit craze, and many point to the mentioned one.

I'm wondering if you're pretty young, because I can honestly tell you that people have been moaning ala this thread about this kind of stuff for the entirety of my adulthood plus some.

I'd love to see some stats that backup your assertion that this one suit set off a "craze". I just don't think that matches reality.

I do find it funny that you'd fault a lady who was burned by 200 degree coffee that the manufacturer knew to be a dangerous product, but you want to excuse yourself from returning a movie on time. But, one fits your agenda, the other does not. Or, perhaps, they fit competing agendas.

 

[covok48]

Don't be pompus, I was simply agreeing with you on one point that I know very little about class action lawsuits and explained that I was on the fence, I wasn't fitting it into any particular agenda. By the way I'm 22 engaged and paying bills thank you very much so let's avoid the "you're young and not as informed as I" line shall we?

And sorry I haven't dug for stats to back up my assertions but neither have you fo if you want me to I suggest you do the same instead of faulting me for it.

 

[.Shane.]

Ah! I found one. Its a good feeling to know my memory was not that faulty in this regard. SOURCE

If anyone truly wants to be more informed on this stuff, please read the article.

There's a lot of good stuff there, but I'll only cut/paste one section of it:

Bates v. State Bar of Arizona
The very next year the Court first determined that attorney advertising was a form of commercial speech entitled to some degree of First Amendment protection in Bates v. State Bar of Arizona. The dispute in Bates began when two Arizona attorneys placed an ad in The Arizona Republic newspaper. The ad quoted prices for certain routine legal services.

This action violated an attorney disciplinary rule that provided: “A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.”

The president of the Arizona bar filed a complaint against the two lawyers, who argued that the ban on attorney ads in newspapers violated the First Amendment. The case eventually reached the U.S. Supreme Court. The Court sided with the attorneys: “Like the Virginia statutes (at issue in Virginia State Bd. of Pharmacy and Bigelow v. Virginia), the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.”

The Arizona bar made several arguments against the attorney newspaper ads, including that they:

* Would have an “adverse effect on professionalism” in the legal profession.
* Were "inherently misleading."
* Would stir up litigation.
* Would drive up prices.
* Would lead to a decrease in the quality of legal services.
* Would be too difficult to regulate.

The Supreme Court rejected all of these arguments by a 5-4 vote. The majority found “the postulated connection between advertising and the erosion of true professionalism to be severely strained.” It also described the historical aversion to attorney ads as a “rule of etiquette” rather than a “rule of ethics.”

The Court reasoned that “the prohibition of advertising serves only to restrict the information that flows to consumers” and that “advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.”

Though it ruled in favor of the attorneys, the majority cautioned that not all advertising by attorneys should receive First Amendment protection. False, deceptive or misleading attorney advertising is unprotected, the Court said. Warnings or disclaimers may be required in some attorney ads. The Court also noted that restraints on in-person solicitation may be appropriate.

The Bates decision led to an increase in attorney advertising. Then, in a series of later cases, the Supreme Court struck down even more restrictions. From 1977 until 1995, the only time the Court upheld a restriction on attorney speech, it involved a ban on in-person solicitation.

 

[.Shane.]

By the way I'm 22 engaged and paying bills thank you very much so let's avoid the "you're young and not as informed as I" line shall we?

The point is, due to your youth, you wouldn't have lived through as much, so your coming of age coincides w/ when that case was in the news, so it may have created a perception that led to the idea that that 1 case (which is constantly misunderstood to start) led to some "craze". Whereas a middle-aged fogey like myself has a long memory of the prominent ridiculous lawsuits.

Trust, me, I'd switch ages w/ you in a heartbeat.

And sorry I haven't dug for stats to back up my assertions but neither have you fo if you want me to I suggest you do the same instead of faulting me for it.

You made the original assertion, not me. So, if you say "there's a craze", all I'm asking is for some validity to that claim.

 

[Sidhe]

I'm wondering if you're pretty young, because I can honestly tell you that people have been moaning ala this thread about this kind of stuff for the entirety of my adulthood plus some.

I'd love to see some stats that backup your assertion that this one suit set off a "craze". I just don't think that matches reality.

I do find it funny that you'd fault a lady who was burned by 200 degree coffee that the manufacturer knew to be a dangerous product, but you want to excuse yourself from returning a movie on time. But, one fits your agenda, the other does not. Or, perhaps, they fit competing agendas.

There is no craze, it's just an already existant culture.

Speaking as someone across the channel, we find the ease with which lawsuits happen in the US to be worrying, not only is this a case that should never happened and an indictement against a greedy lady who couldn't accept responsibility for her own actions, but it's an example for us English who seem to alarmingly be going the same way in frivolous law suits. I did a quick pole of friends yesterday and not one of them thought the law suit was justified(yeah I know hardly a democratic vote but still) Your system is crazy, I personally wouldn't drink luke warm coffee and neither would anyone else I know, let's hope no one spills coffee on thereselves over here because our coffee is bad enough as it is.

These are the sorts of law suits I'm talking about some are no more bogus than this coffee incident, it's sad that people think that wasting all this money on didums is perfectly acceptable, but then it's not an accepted part of my culture yet, so no wonder it's difficult to understand. What kind of world would it be if people were expected to take responsibility for their own stupid actions?

http://www.calahouston.org/best.html

10. ADA Protection Sought for Basketball Boozer
Chicagoland prep star Rickey Higgins was kicked off his high school basketball team when he was caught driving under the influence. It was his second alcohol-related offense.

Higgins, 17, is now suing his high school under the Americans With Disabilities Act seeking $100,000 in compensation and reinstatement to the team.

His lawyer, Steven Glink, contends the boy “has been diagnosed as an alcoholic and that is a recognized disability under federal law”.

 

[.Shane.]

we find the ease with which lawsuits happen in the US to be worrying,

You labor under a lot of misconceptions. Threads like these, don't help things.

The McDonalds case has merits. Many of them. You don't even have all the facts about the case correct, in terms of what you wrote (ie, McD's coffee, while sucky, is still very hot).

Here's what happens. Most cases are dismissed out of hand. For instance the people who sued McD's for making them fat was dismissed, essentially as a nuiscance lawsuit. But, people rarely see or read the follow up because its not sexy and doesn't sell papers. Ditto large $$ court cases, they're almost always significantly reduced upon appeal. But, again, you just don't hear about this.

I'm not saying the system is perfect, not by a long shot. But I think most people have a very wrong or twisted view of how it really is.

And let's not start the country vs. country crap, I could very easily take apart a lot of what I think is wrong w/ English law and tradition, but I don't live there, so I don't really care. I'd rather focus on what I like about your fine nation.

Lastly, that link of yours is suspect, as, like I pointed out, there's no follow up on the outcome of these cases. Keep in mind the US population is 250 million. In a land that size, its not hard to fill up a webpage w/ stupidity.

 

[Sidhe]

I wasn't trying to start up a US vs UK deal here just pointing out your culture is insidious, and we have already been infected with this legal banality. In the hospital where I work the windows cannot be opened more than a couple of inches because if a patient commits suicide then the hospital is liable. Which is fine for ward areas(there are some crazy patients around) but why office workers and support staff have to work in the stifling heat of mid summer is beyond me.

This culture is ridiculous and wastes time and money. Own up to your own actions, if you act like a fool tough luck IMO.

EDIT: btw it's just as easy to kill yourself by running full pelt into a brick wall head down as it is to take a swan dive of the second story. Perhaps we should remove the walls too

 

[Souron]

I don't think so, I think absurd lawsuits just get more attention.

I site ever increasing costs of malpractice insurance for doctors. There has been no trend of doctors getting sloppier. Doctors have continued to practice just as proficiently, if not better, than they always have. Yet malpractice insurance is more expensive now, because there are more malpractice lawsuits. On any unsuccessfull operation, particularly major operations, it is now almost custom to sue the doctor, even if there is no pressing evidence of malpractice. It is that there is a high number of convictions, although the simpathy factor does work against the doctors. But rather it is the sheer red tape of the judicial system, and the need for defence lawyers that makes malpractice insurance necessary. The sheer amount of malpractice lawsuits both keeps malpractice insurance costs high(supply side), and increases the need(demand side).

 

[tomsnowman123]

To be honest, I don't think I've seen you fine with anything so far.

It comes down to them serving a dangerous product. Coffee shouldn't cause so much damage, and McDonalds should have known something would have happened. People don't go to a restaurant that serves food that may cause bodily harm.

 

[RedWolf]

Your system is crazy, I personally wouldn't drink luke warm coffee and neither would anyone else I know, let's hope no one spills coffee on thereselves over here because our coffee is bad enough as it is.
[/url]

Who's claiming the coffee should be lukewarm?

Now if the coffee was as hot as they claim logic states that it would be equally as dangerous to DRINK the coffee as it would be todump it in your crotch - which means you wouldn't be able to drink the coffee at the ridiculous temperature they served it ay anyway. It also means that McDonalds was serving a product that even when used for the intended purpose was both dangerous and defective (food shouldn't injure you)

Now for the record the woman was NOT driving around with a hot coffee between her legs... her son was driving, they were stopped... She put the coffee between her legs in order to pop the lid off to drop in some cream and sugar (something we've probably all done). When she popped the lid she dumped it in her lap.

Now - evaluating her actions they really seem more logical to me. I mean bracing the cup between your legs is probably SAFER then trying to hold the coffee in one hand while putting in cream and sugar... Now if the coffee was purchased through the drive through isn't it safe to assume that the person will put cream and sugar in while in the car? So was she really being THAT iresponsible? Add to the fact that she was an old lady with less steady hands... this accident was really not that outrageous... Could have happened to anybody really.

 

[amadeus]

Who's claiming the coffee should be lukewarm?

Whoever complains about hot coffee injuring somebody. The only way you're going to solve that problem is by heating it to just above room temperature.

Now if the coffee was as hot as they claim logic states that it would be equally as dangerous to DRINK the coffee as it would be todump it in your crotch - which means you wouldn't be able to drink the coffee at the ridiculous temperature they served it ay anyway.

Most companies that produce coffee-making equipment strongly recommend that coffee be heated to 200F.

Nobody forced this woman to buy coffee, much less place it in her lap. It was her own decision, and she should have been held responsible.

It also means that McDonalds was serving a product that even when used for the intended purpose was both dangerous and defective (food shouldn't injure you)

Again, handling raw chicken. Is the Tyler company going to get in trouble because some consumer was sloppy handling their food?

Now for the record the woman was NOT driving around with a hot coffee between her legs... her son was driving, they were stopped... She put the coffee between her legs in order to pop the lid off to drop in some cream and sugar (something we've probably all done). When she popped the lid she dumped it in her lap.

Her grandson was actually driving. Even if the car was stopped, I don't think I'd put twelve ounces of 200 degree liquid right next to my genitals when a teenager was behind the wheel.

Now - evaluating her actions they really seem more logical to me. I mean bracing the cup between your legs is probably SAFER then trying to hold the coffee in one hand while putting in cream and sugar...

Why didn't she ask the employee at the McDonald's to put in cream and sugar, or her grandson? How come she didn't go inside the McDonald's restaurant and do it herself?

Now if the coffee was purchased through the drive through isn't it safe to assume that the person will put cream and sugar in while in the car?

How is that the responsibility of McDonald's? They sold you the coffee. What you do with it from there is your own problem.

So was she really being THAT iresponsible?

She wasn't being irresponsible, at least up until the time when she sued McDonald's for something that was clearly her own fault.

Add to the fact that she was an old lady with less steady hands... this accident was really not that outrageous... Could have happened to anybody really.

Then what's the solution, Red? Idiot-proof the entire world? There are certain dangers you have to accept: coffee is hot, cars get into accidents, knives are sharp, and so on. We can't coat the entire universe in bubble wrap.

 

[tomsnowman123]

Again, handling raw chicken. Is the Tyler company going to get in trouble because some consumer was sloppy handling their food?

Tyler chicken comes with a warning saying "handling raw or undercooked meats could increase chances of foodbourne illness." McDonalds coffee merely says "caution, hot" not "caution, hot enough to cause severe pain and possible injury."

 

[Mastreditr111]

frankly, anyone who does not understand the implications of the phrase "caution, hot" is not, in my opinion, mentally competent to appear in trial at all

hot=burns/scalding

is someone trying to tell me that this woman had never come into contact with anything hotter than her own body and did not understand the concept of heat at all?

 

[classical_hero]

I do find it funny how some conservatives are willing defend this when Macca's are clearly wrong. We all can accept that there does need to be a level of heat needed for it too be good coffee, but the problem with this case is that the coffee was so hot that is caused 3rd degree burns. Now that must have been extremely hot to cause that sort burns, so the case has alot to stand on. Macca's really has not leg to stand on with this one.

 

[PrinceOfLeigh]

@ .shane.
You seem to have spoken the most sense on this thread. Although I work in a different legal system on this side of the pond, I agree with what you say regarding legal advertising.

We have very few solicitors actually advertising on TV. Most of the adverts people see are from referal companies who charge solicitors for finding the work. They are "claims farmers" or "rainmakers"* as I believe they are known over there.

Referers are the people perpetuating the system. They are not bound by any Law Society Rules and can therefore go "cold calling" and basically promise people the Earth (why not, since they aren't the ones chasing settlement anyway?). The "rainmakers" then charge solicitors anything up to £600 for each claim. You want to get rid of frivilous claims? Then first of all make people walk into a solicitors office to make a claim. There are an enormous amount of people who would not have pursued a claim if they hadn't been told how easy it was by a referer.

I also see that people have been defending the poor impoverished insurance companies who only charge high premiums because of frivilous claims. Absolute Rubbish. For one look at the increase in premiums over recent years and actually look at the overall number of claims. I don't have the source here without research but I can tell you the number of people claiming is going down.

Secondly, insurance companies aren't as innocent as they would have you believe. Do you honestly think they want to miss out on the £600 I spoke about? Hell no. When one of their insured is involved in an accident, who isn't also insured with them, the insurance company sells that claim too. Some people are even foolish enough, under the current system, to pay extra for the privilege of having their claim sold on.

The last part of my rant on abolishing frivilous claims is what is known as After the Event insurance. Basically bringing a claim has risks. Any number of things could go wrong leaving you with a ton of legal fees. Some people pay legal protection cover so that the insurance companies will pay these fees in most circumstances. If you didn't have it, would you risk bringing a claim? Doubt it. So what other insurance companies are selling is After the Event insurance, cover in the event the claim goes bust. The UK posters may have heard of it as being "No Win, No Fee".

I could go on about reducing the level of frivilous claims but I fear I may be boring many of you so I shall /Rant forthwith.

*That's a John Grisham reference so I apologise if it is wrong to the point of being defamatory.

 

[RedWolf]

Whoever complains about hot coffee injuring somebody. The only way you're going to solve that problem is by heating it to just above room temperature..

Really? I buy hot coffee all the time and drink it almost immediately. Strangely I don't receive third degree burns. So.. that would imply that my still hot coffee is less hot then the dangerous temperatures served by McDonalds at the time.

Most companies that produce coffee-making equipment strongly recommend that coffee be heated to 200F.

"heating to" does not equal "served at".

Again, handling raw chicken. Is the Tyler company going to get in trouble because some consumer was sloppy handling their food?

Her grandson was actually driving. Even if the car was stopped, I don't think I'd put twelve ounces of 200 degree liquid right next to my genitals when a teenager was behind the wheel.

Why didn't she ask the employee at the McDonald's to put in cream and sugar, or her grandson? How come she didn't go inside the McDonald's restaurant and do it herself?

How is that the responsibility of McDonald's? They sold you the coffee. What you do with it from there is your own problem.

Ok.. nobody assumes you can chomp down on raw chicken and not get sick. That's not the normal use of chicken. If cooking the chicken fully, and eating it caused you to get sick it WOULD be tyler's fault.

Just like with coffee one has a normal assumption that you can drink it after buying it. If you can't, because it causes injury, especially when the company serves the coffee at the temperature hotter then other restaurants despite previous experiences of customer injury then yes they are at fault. I don't think this is a strange legal concept... in fact in law school it's taught as a prime example of product liability.

 

[MamboJoel]

I don't think the restaurant should have sanctions. But it's important to have the info, and that's what all this story is about : be carefull with McDonald's coffee.
Information is essential for economics, chosing what to buy : now we know McDonalds makes very hot coffee, those who don't like it will go to a competitor : c'est la vie.

 

[joycem10]

As an attorney (one who works on the defense side for an insurance company), one of the things I've always found most interesting about the cultural divide between the US and Europe is the attitude towards the American tort system and the punitive damages award.

American left wingers like the original poster love the tort system/punitive damages for all of the reasons that the original poster outlined. It smacks around evil corps, it forces social responsibility at the point of a suit, it gives the little man a chance against the rich and powerful, etc...

Whats interesting is that Europeans, who are generally far more left than the average American leftist, always find our tort/punitive system troubling, ridiculous and dangerous. That might merit its own thread.

On the topic of the the case at hand, I think that the case had merit from a negligence standpoint. There was evidence that McD's was on notice of the potential danger and did noting to correct it. That being said, I think the award, even after being reduced at the appeal stage, was excessive.

Finally, and as someone who has participated in class action litigation, the idea that they help wronged consumers is laughable. The only people making any money are the large plaintiffs' firm and professional plaintiffs they serve. A little known fact is that the Plaintiffs' firm's fees are usually included in the settlement and can go to the tens of million depending on the case. Most class participants dont even bother to file for their portion of the settlement.

 

[Veritass]

There are two parts to the "deep pockets" problems with these lawsuits.

First, the plaintiff's attorney is going to the argument that we need to "punish" the "big ugly corporation" for serving the coffee too hot, etc. If the defendent was the mom-and-pop coffee shop down the street, they might settle for the $100,000 in actual damages and a little pain and suffering, but if it is Evil McDonald's, they go after millions of dollars.

Second, any damages can go against any defendent. That is what causes all of these lawsuits that bring in the extra parties. For example, a rogue cop beats up a suspect. The lawsuit will name the rogue cop and the police department and the city, etc. and claim that the police department did not have sufficient screening or training. This is because the cop could be 99% at fault and the police department 1% at fault. The plaintiff only has to convince that jury that the police department was 1% at fault to have the infinitely deep pockets of the police department (spelled "taxpayers") pay 100% of the settlement.

I have a friend who was a city attorney for a large local city. The city is always getting added into lawsuits. Example: a guy runs a red light and hits another car, injuring the other driver. The guy at fault claims that the traffic light wasn't positioned at the proper angle for him to see it. Again, all they need to do is convince the jury that the city is 1% at fault, and the city gets to pay 100% of the damages. This is IMHO the number one tort reform that needs to occur: limit payouts to the percentage of responsibility.

This particular city is a beach city, so any accident that happens on the beach is also the city's fault for not having proper signage telling you not to dive in the too-shallow water, not to wade out if you can't swim, etc.