Tennessean Article: Tort Reform

Public misconception about McDonalds Hot Coffee Lawsuit, tort reform, and attorney David Randolph Smith’s lawsuit challenging constitutionality of caps on non-economic damages in personal injury cases published in last weekend’s Tennessean Article:

“…In Tennessee, plaintiffs cannot recover more than $750,000 in pain and suffering damages unless the case is considered “catastrophic,” in which case the award cannot exceed $1 million. The caps went into effect last July after Gov. Bill Haslam pushed a tort reform bill through the legislature, widely cheered by the state’s business community.

The law does not restrict the amount patients can recover in medical bills and lost wages. That provision, Miller says, ensures that hospitals and insurance companies still get paid, but it “doesn’t mean a nickel goes to the person who’s injured.”

About half of states cap pain and suffering awards. Legal standoffs have flared up across the country in recent years attempting to undo the limits, and the Tennessee law is far from immune to challenge.

Trial lawyer David Randolph Smith filed a lawsuit five months ago questioning the legality of Haslam’s tort reform. Central to his argument is that juries, not the legislature, should decide how much an injury is worth.

A decision on the Tennessee cap is expected sometime next year, likely from the state Supreme Court.

Attorney John Day said state Republicans exaggerated the prevalence of outsized jury awards as a way to sell the damage caps and limit legal liability.

“This is not the legislature’s idea but the idea of the business community,” Day said. “They manufactured a crisis and then came up with a way to solve it.”

Hot coffee case still resonates
The 2011 documentary film “Hot Coffee” attempted to debunk the myths surrounding the famous McDonald’s lawsuit about which, as the film showed, misinformation persists.

For instance, many believe Stella Liebeck, the plaintiff, was behind the wheel when she spilled the coffee. In fact, her grandson had been driving and the car was parked at the time.

The spilled coffee had been served at around 180 degrees, 40 degrees hotter than most home-brewed coffee. The spill called for acute skin grafts across her body.

Although she would later be depicted as a greedy customer trying to squeeze millions out of a corporate giant, Liebeck originally asked for just $20,000, enough to cover her medical expenses. McDonald’s offered $800.

And finally, in spite of the headline-grabbing $2.7 million award that had at first been granted, a judge later reduced it to $640,000 — and that amount was reduced even further in the undisclosed settlement, which finally brought the legal fight to a close.

“Even when you have a righteous case, the McDonald’s case is brought up, which could ruin your shot of a jury being fair,” attorney Miller said.

Ed Cheng, professor of tort law at Vanderbilt Law School, said the McDonald’s case is still “very salient” in public discussions about tort reform.

“Most people still remember that case,” Cheng said. “But to understand award payouts, you have to look more systematically. By focusing on outlier cases, it’s difficult to really judge a system.”

Daniel Clayton, a local medical malpractice attorney, said the propaganda about the case has helped marshal public opinion in favor of lawsuit reform. Many, he said, do not fully grasp its implications for people claiming injury.

Those implications easily could come into play with Angelica Keller’s case. It’s not hard to imagine jurors being reminded of the McDonald’s case, which entered the national consciousness and stayed there, even as they confront a different set of facts.

Whether jurors ultimately conclude that the fault lies with her or Southwest Airlines, trial lawyers say the wave of lawsuit reform buttressed by the McDonald’s spill damages the civil justice system.

Said Clayton: “It ends up hurting those who are hurt the most.”

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