Cross-posted by at On the Docket

The Merriam Webster Dictionary’s definition of the word “propaganda” is “ideas, facts, or allegations spread deliberately to further one’s cause or damaging an opposing cause.”  That definition fits a spare-no-expense 90-minute documentary movie titled Hot Coffee.  The purpose of the movie’s dedicated producer, Susan Saladoff, a Oregon plaintiffs’ lawyer, is to undermine the purpose and credibility of the United States’ civil justice reform movement.  While the movie’s pro-plaintiff’s transparency may elude some, it is more likely to be the center of a ruckus cheering section for the plaintiffs’ bar.  Four of their biggest pet peeves are the movie’s focus.  

The Infamous Spill. Although it occurred over twenty years ago, plaintiffs’ lawyers despised the publicity that surrounded the so-called “hot coffee case.”  The “hot coffee case” spotlights Stella Liebeck, an elderly woman who in the early 1990s, while sitting in the passenger seat in a car at a McDonald’s restaurant in New Mexico, spilled a cup of coffee on herself.  This spill resulted in very serious third degree burns which are shown graphically in the movie.  While Ms. Liebeck’s injury is indeed tragic, the fundamental fact remains that, however terrible her injuries, a McDonald’s employee did not spill the coffee on Ms. Liebeck, she spilled the coffee on herself.  The automobile in which she was a passenger did not have a coffee cup holder.  That fact had not been well publicized until the movie.  Under the movie’s thesis that others are to blame for one’s own conduct, one might wonder why Ms. Liebeck did not bring a design liability claim against the manufacturer of the automobile because it lacked cup holders.  If there had been a coffee cup holder, she might not have spilled the coffee on herself.  Perhaps her lawyers thought that McDonald’s was an easier target.

Publicity about the McDonald’s “hot coffee case” convinced many Americans that our legal system was broken.  If a person could successfully bring a claim against a restaurant when they spilled coffee on themselves (as contrasted with a waiter spilling it on a patron), almost anything could be fair game.

Playing to her plaintiffs’ lawyer crowd, Ms. Saladoff’s movie portrays McDonald’s as being cruel in refusing to settle the case for Ms. Liebeck’s basic medical costs.  It also rehashes the fact that McDonald’s coffee was about ten degrees hotter than coffee served in other areas in that part of New Mexico.  Hot Coffee gleefully reports that McDonalds reduced the temperature of its coffee by ten degrees after the “hot coffee case.”  But, what the movie does not show is whether Ms. Liebeck’s burns would have been less severe if the coffee had been just ten degrees cooler. 

Hot Coffee states that in the ten years prior to Ms. Liebeck’s accident, McDonald’s had received over seven hundred complaints about their hot coffee.  What the movie does not report is that during that ten-year period, McDonald’s sold around ten billion cups of coffee.  Any business in the world that had only seven hundred complaints out of ten billion sales would believe it had performed a good job in terms of safety and care.  But, if all one hears is “about seven hundred complaints,” then one can conclude that the purveyor of the hot coffee was somehow evil and wrong.  This is the “half a cup” approach taken by the film.

What Hot Coffee does not show or discuss is the real impact of frivolous lawsuits.  Out of the thousands of frivolous claims that are filed each year, it is telling that no small business owner was interviewed for the movie regarding claims made against his or her business.  In powerful testimony before the House Judiciary Committee in March of this year, a spokesperson from the National Federation of Independent Business gave numerous examples of frivolous claims.  But, no frivolous claims are in the movie because that would not support the producer’s purpose of furthering her cause to destroy civil justice reform efforts. 

Pain & Suffering Caps. The movie focuses next on the plaintiffs’ lawyers’ greatest bête noire, caps on pain and suffering damages.  Plaintiffs’ lawyers hate caps because they eliminate $10 million, $100 million, and sometimes even greater awards where the actual damages, namely, what people lost, are comparatively far less.

Again, following the purpose of the movie, it does not focus on caps on pain and suffering damages which are overly subjective and without any guidelines.  Instead, the focus is on a case that arose in Nebraska where a woman’s medical malpractice claim and an award of $5.6 million was reduced to a more meager $1.7 million.  The plaintiff in the case was a victim of malpractice; she was pregnant with twins, one of the twins lacked oxygen in the womb, the doctors failed to perform a c-section and the twin deprived of oxygen was born with very serious mental and physical disabilities.  The amount of the reduced verdict did not compensate the victim for his medical costs for the rest of his life. 

Although it is mentioned very quickly in the movie, the cap at issue limited actual out-of-pocket damages.  Such general caps only exist in two states, namely, Nebraska and Virginia and then in some other states solely in the area of malpractice.  What the movie does not show is that in the civil justice movement when caps are sought, they are on pain and suffering damages which, by nature, have no true market value, and can be spurred by raw emotion and not the facts.  Hot Coffee suggests that when caps are enacted they do not benefit doctors or society.  What the movie does not show is specific cases in Missouri, Mississippi and elsewhere, where caps on pain and suffering damages reduced or stabilized the costs of medical malpractice insurance, increased the number of doctors available to poor people, reduced unnecessary defensive medicine, and had distinct societal benefits.  Rather than focus on these facts, the movie bluntly states that caps present little or no benefit to society.  Again, the viewer gets a half a cup.

Judicial Elections. Hot Coffee’s third part focuses on the controversial subject of money in judicial elections.  There is a debate in this country as to whether judges should run for office or be appointed, and what restrictions, if any, should be placed on contributions to judicial campaigns.  The movie could have provided an interesting platform for debating this topic, but that is not what it does.  The movie, once again focuses on a “victim.” This time the alleged victim is former Mississippi Supreme Court Justice Oliver Diaz.  Mississippi does elect judges and a lot of money is spent by both sides when there is an election.  To meet the plaintiffs’ lawyers’ cause, the movie focuses solely on business money in judicial elections, and puts forth “villains” such as Karl Rove and suggests that improper tactics were used to defeat Justice Diaz.  The movie then attempts to make Justice Diaz a hero by saying he triumphed and won an election in spite of the large amounts of monies that were spent to defeat him.  It then says that Justice Diaz was prosecuted for improper conduct on the bench and eventually acquitted.  The movie uses the word “political” prosecution and implies that business may have been behind that effort, but does not offer a shred of evidence that this is true.  This point is emphasized by the former Justice himself when he says that “they” could not win through the election process, so they turned to a prosecution.  The case was brought by a federal prosecutor.  The movie offers no evidence that the prosecutor was biased in any way or motivated to file charges by civil justice reform proponents.  As the movie shows, Justice Diaz was acquitted but acquittals are not evidence of prosecutorial bias. 

The movie very briefly mentions that the plaintiffs’ lawyers contribute money to judicial elections, but undermines that message by focusing on a Mississippi rule where money is capped per person, leaving the viewer with the impression of a David versus Goliath matchup in judicial elections.  The movie makes no mention of how plaintiffs’ lawyers have directly and indirectly injected hundreds of millions of dollars in an effort to elect judges who will be sympathetic to their causes.  In fact, history reflects that the first big money placed into elections came directly from the plaintiffs’ bar.  Ironically, some plaintiffs’ lawyers may not entirely cheer this portion of the movie, because they like judicial elections and generally do not like it if judges are appointed.  They want to be able to spend money on elections, but the movie, once again, has its half cup of coffee approach and makes it seem that the only party really putting big money into judicial elections is big business.

Arbitration. The last part of the movie is perhaps the most gripping.  Once again, it attacks something plaintiffs’ lawyers despise, mandatory arbitration agreements.  Plaintiffs’ lawyers hate these agreements because they deprive them of having contingency fee clients.  Resolution under mandatory arbitration is swifter than trials and plaintiffs’ lawyers often get no money out of them.  Those facts are not mentioned.  Instead, once again, the movie focuses on a victim, Jamie Leigh Jones, a former KBR Halliburton employee.  Ms. Jones pleads her case in the movie that she was drugged and raped by male co-workers in Iraq when she was only 19 years old.  She indicates that Halliburton ignored her pleas not to live in a place where many males shared adjoining accommodations.  The movie then focuses on congressional hearings and makes a hero of Senator Al Franken as he milks every possible emotion from Ms. Jones at a hearing and chastises business interests who believe mandatory arbitration is a fair means of handling disagreements.  What the movie does not show– again the half a cup of coffee –  is that the overwhelming use of mandatory arbitration agreements is not in situations where there is an alleged criminal wrongdoing that arises in the courts of employment.  To the contrary, these agreements are used in financial disputes between credit card companies and their customers, stock market brokers, and in other commercial transactions.  There has been legislation pending in Congress for many years, called the Fairness in Arbitration Act.  It would abolish mandatory arbitration in such circumstances, but the legislation, even when trial lawyer-sympathetic politicians controlled both houses of Congress and the executive branch, never moved very far forward and was never voted upon by either house of Congress.

Hot Coffee is a slick production.  The music is good.  The photography is excellent, and the acting to try to get and bring Ms. Saladoff’s points home, is superb.  Propaganda is at an apex with “villains” (President Bush, Karl Rove, certain business groups), as well as heroes and heroines, the victims.  But, will Americans see that the movie is a half cup of coffee with major facts left out in every single segment?  Will the audience realize that both sides of any of the four issues: the hot coffee case, tort reform and limits on damages, judicial elections, and mandatory arbitration, are not presented? 

There is an old expression “too slick by half.”  Most Americans are likely to realize this is not a full cup of coffee.  It is only one side’s perspective on some major issues facing our civil justice system.