Tort Reform Myths: Greedy Attorneys File Frivolous Lawsuits
One of the major claim’s tort reform proponents reference is a tale of greedy plaintiff’s attorney’s filing frivolous claims in hopes of winning the lawsuit lottery. The favorite fable of this media created folklore is the McDonald’s case. Therein, an elderly woman purchased coffee at a drive through window, put it between her legs and removed the top to put creamer in, and spilled the coffee causing third degree burns to her thighs, groin, and buttocks. These burns resulted in a series of skin grafts over two years, leaving permanent scars on 16 percent of her body. The crux of the case was that McDonald’s purposefully altered its coffee machines to brew at 180 to 190 degrees Fahrenheit which causes third degree burns within seconds of contact, compared to a home coffee pot which brews at 130 to 140 degrees Fahrenheit. Internal McDonald’s memos revealed this higher temperature was integrated into company procedure to attract business people who put the coffee in a thermos and wanted it to stay hot longer. Further, internal McDonald’s memos revealed that coffee lids with pull tabs where creamer could be poured were not purchased to save 3 cents per coffee. In addition, a McDonald's product assurance manager testified that “he had known for years of the damage his product caused, knew his customers did not know of the hazard and had done nothing to study or solve the problem in the face of an admittedly incomplete list of more than 700 burns.” Based on these facts a jury awarded the elderly woman $2.9 million dollars. Of this $200,000 was in compensatory damages, and $2.7 million was in punitive damages which equaled the total dollar amount of McDonald’s coffee sales per day. Thereafter, the trial judge reduced the award to $640,000 and the parties settled privately during the appellate process. Strangely, tort reform proponents only repeat the initial jury award of this case while revealing a minuscule amount of the facts that led to it. Most significantly, this limited portrayal is on the mind of every juror sitting through voir dire in a civil case: some woman got $3 million dollars for spilling coffee on herself.
The McDonald’s case could be an odd example, perhaps it was a fluke, revealing the truths of that case doesn’t refute that plaintiff’s attorney’s aren’t filing frivolous lawsuits. However, a Harvard study found that one out of every eight people who are legitimate victims of medical malpractice files a claim. Medical malpractice tends to get a majority of public attention concerning tort reform, yet this statistic is conveniently left out. One out of every eight legitimately injured victims filing a claim tends to suggest a lack of filing of meritorious cases rather than a glut of frivolous cases. Further, tort claims as a percentage of civil filings have steadily declined between 1990 and 2006. In that regard, tort filings decreased 4% in the 35 most populous states between 1993 and 2002. At face value, these statistics indicate the myth of frivolous lawsuits is at the very least an overstatement.
Many tort claims are taken on a contingency fee basis where a plaintiff’s attorney incurs the costs of pursuing the claim in exchange for a portion of any amount’s recovered. Simply put, there is no logical reason a plaintiff’s attorney would risk thousands of dollars on an unmeritorious case; as a business investment, the probability of return on a baseless claim provides no motivation to file a frivolous lawsuit. Additionally, if a frivolous claim is filed, and there is no evidentiary support to sustain it, sanctions will be imposed on the filing attorney(s). In sum, filing a frivolous claim is a bad business decision that carries with it a strong likelihood of financial loss, and the risk of court sanctions.
