Personal Injury — The Myth of the Frivolous Lawsuit — Hot Coffee Part II

As mentioned in Personal Injury — The Myth of the Frivolous Lawsuit — Hot Coffee Part I, after premiering at the 2011 Sundance Film Festival, the documentary Hot Coffee made its television debut on HBO. The movie addresses mandatory arbitration, corporate financing of judicial campaigns, caps on damages in civil / personal injury law suits (Tort Reform), and (in her words) “the myth of the frivolous lawsuit.”  This blog addresses the latter two topics.

Corporate Funding of Judicial Elections

Hot Coffee addresses the issue of corporate funding of judicial elections. Commentators interviewed for the film explain that political strategist Karl Rove devised a system to elect pro-corporation Republicans to local Texas courts. The system was mutually beneficial: judicial candidates would have well-funded races in return for businesses having judges in power who would rule in their favor. This model is still working (for businesses and judges–but not the public). It has been exported and applied in many other states since the 1990’s and, as a result, we’ve seen unprecedented numbers of overturned verdicts on issues of tort reform in favor of corporate interests.

The backer of many of these campaigns, including the one highlighted by the filmmakers inHot Coffee, is the United States Chamber of Commerce, a misleadingly named collection of businesses considered to be the largest pro-corporation lobbying group in the U.S. Its Board of Directors includes executives from Pfizer, ConocoPhillips, Dow Chemical, Lockheed Martin, Altria/Philip Morris and the American Medical Association.

As explained by former trial lawyer and bestselling novelist John Grisham, “Here’s the way campaigns happen, okay? You have your doctors, hospitals, manufacturers, insurance companies. You’ve got all those folks quarterbacked by the Chamber of Commerce. That’s where the money is. There’s nobody on the other side except trial lawyers. Trial lawyers know the law and they know what’s going to happen if these judges get elected.”

Chuck McRae, former justice of the Mississippi Supreme Court said, “You get five judges that have a persuasion always to be with the doctors or always to be with the corporations, and you’ve got court reform. And that’s more deadly than tort reform ever thought about being.”

Mandatory Arbitration

The common business practice of mandatory arbitration is the agreement between two or more parties to waive all rights to a jury trial in favor of secret arbitration. While this sounds incredibly unethical and unfair, it is far more widespread than most people realize. An attorney interviewed for the film explains, “When you ask people about binding arbitration and whether they would knowingly sign away their rights, they say, ‘Well, of course not.’ Then you ask them, ‘Do you have a cell phone? A gym membership? A credit card?’” In other words, they’ve already signed away those rights with many of the day-to-day contracts they have signed.

Another source in the movie reports that more than a third of the working people in America are bound to forced arbitration clauses, a larger number than are in labor unions. And in nearly every case, the corporation gets to choose the arbitrator, adding a serious level of bias into the arrangement because, obviously, the arbitrator wants to keep getting business.

While the movie Hot Coffee covers far more than the Liebeck v. McDonald’s case, it is an eye opener for non-lawyers and those not involved in the legal system. The original Hot Coffeeinjury case was misreported by the media. Much of the coverage did not take into account the fact that McDonald’s coffee was so hot that it was capable of almost instantaneous destruction of skin. It did not report than McDonald’s had received nearly 700 coffee burn complaints in the 10 years prior to Liebeck’s injury.  It mischaracterized Stella Liebeck as having been a car “driver” severely burned by the coffee after it spilled into her lap. In fact, she was a passenger. She suffered third-degree burns over 6 percent of her body, was hospitalized for eight days and underwent skin grafting,