The LA Times piece on tort reform I linked to several days ago and thought was an interesting read appears to be nothing but a bunch of false premises built upon strawmen.
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[…] Kudos to John Cole, who evaluated the evidence and withdrew his endorsement of the LA Times story. […]
Steve
Tort reform involves eliminating frivolous lawsuits by eliminating lawsuits.
jg
The ability for citizens to sue is how the free market polices itself. If the gov’t does their tort reform thing many companies will put a lot less money into product testing. Lobbying baby, yeah!
KC
I’m not totally convinced by this blog, hate to say it. Especially what’s in that last link.
ape
Listen JC – how many people who read your first post on this subject believed that they had only heard of the Winnebago case cited as an example of a false story?
Not many, I think. I’ve certainly heard it presented as true.
ape
last time we debated this, someone accused me of spinning ‘urban legends’ when i mentioned that “companies who like to fill up kids with heavy metals, and the Republican senators in their pockets, benefit from [tort deform]”
he was of course correct. i should have said Republican congressmen.
http://www.cbsnews.com/stories/2002/12/12/eveningnews/main532886.shtml
Ted
Amazing–ape is actually citing the long-refuted vaccine lawsuits, based on pseudo-science as bogus as creationism, and a prime example of how the trial lawyers’ bar acts to endanger public safety, in a argument about urban legends. The irony is chilling.
In terms of urban legends influencing the tort reform debate, I’m sure many more people have heard the “Ford Pinto myth” from many more important people than the Winnebago story. I’ve never seen the Winnebago story used by a serious writer to support tort reform, while I’ve first-hand seen Jonathan Turley (who was quoted in the LA Times story) repeat the Ford Pinto urban legend to justify opposition to litigation reform, and Ralph Nader continues to use it as an example of the “good” trial lawyers do. But the story is absolutely false: the Ford Pinto had the same fatality rate as other cars of its size, there were only 27 (not “thousands”) of fuel-fed fire deaths (many, and perhaps most, of which were in unsurvivable crashes to begin with), and there never was a decision-making memo valuing a human life at $200,000. Where’s Myron Levin debunking this one?
aaronpacy
The larger point from the article that should be focused on is the data showing that lawsuits and rewards have DECREASED over the last fifteen years. Doesn’t that show the mania of the tort reform crowd is overblown?
ape
aaronpacy –
yes, decreasing claims does refute some of the claims of the tort deform movement. however, it’s not the key point: the questions that should be asked are whether Tort/ negligence law as it stands helps protect people from harm, provides restitution etc.. and provides a recourse for all who have been harmed by negligence and as few as possible who haven’t.
the absolute level of claim can’t be decisive unless you know the amount of negligence/ harm. there’s a lot of talk about ‘defensive medicine’ and suchlike harms alleged ill effects of Tort. maybe true, I don’t know. But we also need to know how many mistakes have been avoided by the encouragement of better practice. I find it difficult to believe that the balance is not heavily on the positive side of the balance sheet. Even the tort deformers would probably agree. but then they’d say ‘now we’re going/ have gone too far’. the real focus should be on the benefits of legal recourse. communist china doesn’t have it. they have a terrible toll of death & human misery instead. which do we prefer?
Ted
Aaronpacy, the “number” of lawsuits may have decreased, but this isn’t the relevant number. The *cost* of lawsuits has increased.
goonie bird
Tort reform mean eliminating frivlous politicly based lawsuits like the ones aimed at the firearms companies or at McDonalds and Burger King we need tort reform and pluck the vultures and hook the sharks
Steve Smith
I’m not sure if a website entitled “Overlawyered.com” isn’t going to give you the same sort of cherrypicking that you accuse the Times of doing. I too have received e-mails about the Winnebago story, always as an example of what a horrible lottery the tort system is. I happen to have heard of the Snopes website, but I bet only a small fraction of the people who get the e-mail have. And the one thing the Times article correctly points out is how reliant on anecdotage (particularly the bogus variety) the “tort reform” lobby is.
Tim F
Speaking of no longer operative…
KC
One thing that’s always interested me is the history of lawsuits. While I haven’t read specifically on the subject itself, I’ve read more than a few history books in which the main characters, people like our founding fathers, either threaten to sue or straight out sue each other over what seem to be silly things (poltical slights, etc.). I’m also interested to know about corporate lawsuits, which companies are suing other companies for competative advantage and not because of outright wrongdoing. People in the environmental resources field here in California have told me that big agribusiness companies are always suing one another over water rights, etc. All this stuff would be interesting to know about. After all, if we’re going to curb useless and wasteful lawsuits, why not better define and understand what is useless and wasteful both historically and currently.
I fail to see why negligence suits by consumers ought to be curbed, for example, if business on business suits are taking up large amounts court time. I’m sure they are equally if not more costly than your average citizen suit. And wouldn’t the costs of such suits just filter back onto consumers too?
Steve
There are plenty of sensible ideas for tort reform out there. But although they would improve the legal system, very few of them would have a big impact on other areas of life. Some politicians, for example, don’t want to deal with skyrocketing health care costs, so they try to blame the whole thing on the plaintiffs’ bar, and claim that oh gee, if we could just get some tort reform everything would be better.
There’s nothing wrong with reasonable caps on punitive damages, or having a panel of doctors review medical malpractice claims at an early stage. (Many states do these things already.) The recent bill protecting gun manufacturers from liability seems to be a good law, even though it was silly to delay the defense appropriations bill for a month just to get it passed. When an issue can be dealt with on a national scale, it’s a lot smarter to do it through legislation than to have it hashed out in lawsuit after lawsuit, with unpredictable results.
Like everything else, tort reform has its good ideas and its bad ideas.
Mr Furious
Yeah, I linked to that story at my blog and got lengthy responses from Ted and another person. Tort reform certainly fires people up and brings ’em out of the woodwork. I got a response from Ted before I had even commented on it anywhere else—and believe me, nobody that I know of reads my blog. Kind of makes me wonder how an AEI guy running a site called “overlawyered.com” just happened to wander thru the ghost town that is Mr. Furious.
Obviously somebody is actively running a campaign to seek out and counter any of this stuff.
Both Ted and the other commenter raised good points and even some doubts about the LA Times piece, but I am hardly willing to dismiss the story on their say-so. Hopefully that’s not what JC is doing.
Deoxy
Steve Smith,
Many people who sympathize with the tort reform movement use a lot of anecdotes. Actual tort reform lobbyists don’t (or at least, don’t have to – I would suspect that some of them are too lazy to do their job). There are plenty of real world cases that would take your breath away in the horror of the injustice of our legal system, if you just bothered to look them up.
ape,
Besides spouting urban legends about “heavy metals” (as Ted pointed out), you also don’t seem to understand the concept of “opportunity cost”.
Could we do more in medicine? Could we test more? The answer is always YES. We could literally fill our entire lives with nothing but medical testing. Odds are, at least a few lives would be saved by this. But that would be completely and utterly ridiculous – even you can see that.
Therefore, there is a point where the cost is simply too high. Where is taht point? Well, that’s an argument for another time, but simply saying that there are positive benefits is insifficient – what did we PAY for those benefits? How much time and effort did we expend that could have been used on something else?
For an extreme example, going back to my first point (spending our whole lives in testing), we would never cure cancer (or much of anything else). We would never make any improvements in our medical technology – all we would do is apply what we now know. We would have no effort left to spend on other things.
That’s the point. NOTHING (not even human lives) have infinite value. Here’s a simple example for you: you have $1,000,000. You can A) pay for 10 surgeries for people who need them, or B) immunize 100,000+ children against polio, diptheria, etc, etc… Which do you choose?
That’s the sort of choices we have, here. If it makes you feel better, don’t think of it as money – think of it as human time (which is mostly what you’re paying for). If there are 100,000 nurses available, you can only expend, at the absolute and complete max, 2,400,000 nurse hours per day (and even that is quite unreasonable). What will you spend those hours on? Yet another round of tests, which might save an extrra life or 2, or ER patients?
Yes, I am oversimplifying a bit, but you are oversimplifying a HUGE amount in the other direction.
Steve
Allow me to point out that “anecdotal” is not synonymous with “fictitious.” Citing to “real world cases that would take your breath away” is exactly the type of anecdotal evidence under discussion. We never hear about the vast number of lawsuits that are decided the right way, or the vast number of frivolous cases that are properly thrown out by a judge at a very early stage. But we see plenty of “tort reform” proposals thrown out there that would bar any number of meritorious lawsuits, all in the name of stopping a few “breathtakingly” frivolous cases that make good copy.
space
Here’s the problem as I see it. “Tort Reform” is a meaningless term that can be applied to an infinite amount of tinkering with the legal system, some good and some bad.
Obviously there are problems with the tort system in America. They aren’t significant (the penal system, hello?), but there are problems.
Off the top of my head I could suggest half a dozen reforms that would improve litigation in most states. So, sure, I am pro “Tort Reform” in the abstract.
Unfortunately, the “reforms” that have tended to gain traction in Republican circles are moronic proposals like liability caps. Rather than screening out frivolous lawsuits, liability caps merely limit the liability of corporations (or individuals) for actual wrongdoing. Which is entirely the intention of the insurance company lobby. They don’t give a damn about fault. They want to limit liability in all cases. A dollar paid out to a deserving victim and a dollar paid to a frivolous tortfeasor are of equal value to an insurance company.
Ted
Imagine that: I see a bogus newspaper story that falsely accuses me of making up stories to support my cause, when in fact my cause is meritorious and I don’t need to make up stories to support it, so I post about it on my web site, and then check out Technorati to see what people in the blogosphere are saying, and find that a few people have unquestionly endorsed the story (and, in Furious’s cases, added even more false embellishments in the best urban legend manner), and feel inclined to point people to refutations. And it’s nice to see that Mr. Cole fairly evaluated the evidence as a result of my efforts. Where’s the conspiracy?
Steve, I don’t think that the McDonald’s coffee anecdote, by itself, proves anything about the tort system. However, a lot of what went wrong in that case is symptomatic of a series of serious problems in the tort system that have nothing to do with meritorious cases. And, worse, you have law professors and the litigation lobby affirmatively propounding the argument that the McDonald’s coffee case isn’t just an aberration, but is an aspirational case that the tort system should strive to. It frightens me that there’s a generation of lawyers being taught such nonsense, because it could well doom our economy down the line.
At AEI, there’s more than just anecdotes. We’re doing quantitative economic studies that measure the effect of various tort rules on the system and the economy: how unfettered malpractice litigation damages results in increased infant mortality, and so on.
ape
Dear Ted and others –
I absolutely did not “spout urban legends about ‘heavy metals'” nor “cite” any case.
I referred to a clause of a law.. I must admit I’ve not investigated this before, but I think this is the one:
Section 2133(5) of the Public Health Service Act (42 U.S.C.
300aa-33(5)) is amended by adding at the end the following: `For
purposes of the preceding sentence, an adulterant or contaminant shall
not include any component or ingredient listed in a vaccine’s product
license application or product label.’.
I don’t think this is an ‘urban legend’. It’s sec1715 of the Homeland Security Act.
I’m certainly not making any judgement about the facts of Tort cases (“citing the long-refuted vaccine lawsuits”) or their ‘pseudoscience’.
I was pointing out that the Tort deform movement caused the enactment of a law which meant that a manufacturers of particular ingredients could not be separately liable. I did not say ‘heavy metals cause autism’.
WHY SHOULD such a clause be necessary if the science is bogus? Put it before a court and shoot it down.. (as opposed to putting it in front of a no-fault system with maximum compensation levels & secret proceedings, which I think is now the case.)
Look at this from the other end of the Vaccine/ Autism hoo-ha: If people can’t sue drug manufacturers, doesn’t that leave the purveyors of autism-curing snake-oil (in some cases the same twerps who proposed the link) free to go on conning the poor parents? the prices of their potions are incredible.. one of the most tragic things i’ve seen.
Even if I’m wrong in what I said (maybe I am – perhaps vaccine makers do deserve the special protection they have and this did need to be extended to others) I didn’t claim support the plaintiff’s claims in such cases, ‘pseudoscience’ or otherwise.
cgm
ape,
Clauses like the one you cited (exempting vaccine mfrs.) are necessary because our adversarial system isn’t designed to ferret out “truth.” That’s the realm of science. The courts are for resolving disputes. That’s all. And let’s not even talk about “justice.”
When a socially useful product (like vaccines) is threatened by specious allegations (e.g., that the preservative in vaccines is the cause of autism), the legislative system is the only body that can craft a happy medium between “justice” gone awry and the needs of society.
In short: that law is needed not because the science refutes the claims, but because scientific proof is NOT dispositive in a court of law; that’s for a jury to decide.
Oh, it’s also needed because infants dying of diptheria, pertussis, tetanus, measles, mumps, or rubella, make for really bad P.R.
Deoxy
ape,
“Put it before a court and shoot it down.”
It has been done. And done. And done. And done again. And done some more.
See, that’s exactly the problem – it’s not that the cases are any good – the vast majority of them lose (that’s the “lottery” effect peope talk about, where a very few, with the same facts, win BIG, and the others lose), but the costs of litigating all these frivolous cases is born by the defendant.
Allow me to give a more personal (to you) example.
I have a lot more money than you, and I don’t like you, and I want the land you own. I sue you for it. My claims are silly, and you win, but it costs you money.
I sue you again. Same result. I sue you again. Same result. I sue you again. Same result.
Yay, you still have your land – that’s justice right? Well, except for the massive amounts of money and time you’ve spent defending yourself in court. Eventually, I could bankrupt you. Nice, huh?
That’s the problem – actually, it’s worse than that, because against an individual, there are some sanctions that will (eventually, probably) come into play. But corporations always have new people to be sued by.
Shield laws SHOULD (aren’t always) be about saying, in effect, “OK, that point has been sued over enough, and they won enough, that they shouldn’t have to waste their time and money defending themselves against it any more.”
(The recent gun-industry protection law, for instance – gun-control proponents have said IN PUBLIC that their aim is simply to bankrupt the gun-makers with court costs, even if they never actually win any cases.)
And the law you cite means that ingrediants you list ON THE LABEL aren’t considered “contaminants” or “adulterants”, to which I say… WELL DUH.
A “contaminant” is something that “contaminated” the product – stuff you put in there ON PURPOSE is not a contaminant. That’s actually a huge piece of evidence FOR tort reform – one method of suing peeeople is to call ingreeediants “contaminants”, then sue over the “contaminants”. And you think that’s OK?
Deoxy
space,
“caps” apply (at least, the only kind I endorse) to NON-ECONOMIC damages – primary “pain and siffering”. Caps are indeed bad, but they are LESS bad than this:
“You killed my dog (by accident, with your car)! (which I left out against leash laws for several days, and it fell asleep behind your rear passenger side tire) It caused me SO much grief that I need $10 million!!!”
Um, no. Sorry for your loss, here’s money for a new dog, plus dog food for several years, plus vet bills for sevral years, plus, perhaps, some small token, but MILLIONS of dollars? And yes, people actually ask for (and get) stuff like that. (See recent $14 million verdict for the guy who got hit with a phone. $14 million?!? Hey, hit me next, I beg you! Instant retirement!!)
But let’s say I burn down your house (by accident) – if it costs $20 million to rebuild the same house (plus contents), well $20 million is what I owe you. No cap would apply.
Capriccio
“At least fourteen out of fifteen courts who have heard identical coffee-spill cases have disagreed with Turley.” So concludes the oh-so credible gang at Overlawyered.con.
Identical, huh?
All 14 plaintiffs same age?
All 14 plaintiffs sitting in parked cars?
All 14 plaintiffs with degree of burns the same?
All 14 plaintiffs burned in same body areas?
All 14 plaintiffs suing a company (McDonalds) that had already received 700 complaints about coffeee served too hot?
No, 14 of 15 courts did not disagree with Turley; 14 of 15 courts ruled that the cases brought before them lacked merit. That’s how the system works.
Mr Furious
I used a link supplied in the original thread here (at Balloon Juice) to compose my post. Not up to proper journalisitc standards, but I’m just an idiot blogging during lunch, not a reporter or a think-tank jockey.
After your first comment, I looked into it further and found the Wall Street Journal article that pretty much bolstered everything I said. So disagree with my POV if you want—I think McD’s was liable—but don’t act like I made a bunch of shit up.
Nash
John, I think in your sleep-deprived state, you are allowing yourself to get played by Frank and Olson.
I would like to re-direct you to the LA Times piece:
Hmm, I count a total of 11 news outlets from local to international in reach that credulously retold at least one of these legal myth stories as true. The media don’t generally rush to issue corrections for stories they never told in the first place. Bad for employee morale, like having to un-sponsor Pentagon-run pro-Administration events piggybacked onto 9/11 commemorations.
If that’s correct, then that would make this important claim by Frank what is known in the business of lying as “no longer operative.”:
Those 11 outlets that ran with this or one of the other two myths as valid should count as a thorough trouncing of that statement by Frank. That should end his credibility.
And what to make of this (same link):
14 identical coffee-spill cases? Really? Same elevated temperature? Same documentation of repeated efforts to warn the eventual defendant of their potential negligence BEFORE anyone has been harmed by their product? Same multiple attempts at every phase of the case to settle out of court for less than the final award? Identical, hmmm…well, I guess identical doesn’t mean as much as it used to.
I’d suggest you slow down the pace of your walk back, lest you have to walk back your walk back.
shortbill
John, I think you are jumping to the tune of Overlawyered a little too quickly. The only worthwhile point he made was that mean tort costs as opposed to median costs are rising which would seriously hurt the LA Times point. Overlawyered is relying on “research” by Tillinghast-Towers Perrin which Overlawyered cites approvingly and Pointoflaw.com called “Tillinghast-Towers Perrin, the consulting firm that is the definitive source for overall tort system costs”. Unfortunately Tillinghast-Towers Perrin is a prviate group hired by folks interested in promoting tort reform. The Assoc. of Trial Lawyers of America casts doubt on the Tillinghast-Towers Perrin study citing the Economic Policy Institute. For example, the TTP study supposedly did not inform readers of their methodology and included odd expenses like CEO salaries of insurance companies in their analysis. All of these groups have some sort of interest in this debate that would lead me to be skeptical of their claims as should you.
BCT
The overlawyered blog defended the use of McDonald’s case as an example of court abuse, “(Perhaps because it is court abuse. At least fourteen out of fifteen courts who have heard identical coffee-spill cases have disagreed with Turley.)’
Anybody with knowledge of the facts care to explain how that suit was court abuse, and what their opinion of what the proper court decision should have been?
I’ve read the pro-suit arguments for years and generally agree with them. I can’t understand continueing to use the McDonalds suit as an argument for tort reform when you know the complete facts. Anyone?
Deoxy
I can’t understand why anyone who knows the “complete facts” of the Liebeck case WOULDN’T use the suit as an argument for tort reform:
Liebeck bought hot coffee from McDonalds. Hot, the same as they sell it to everyone else (and the same as practically every coffee place in the USofA, and still that hot today).
Ms. Liebeck spilled said coffee ON HERSELF by removing the lid of the cup and setting said cup between her legs while sitting in the passenger seat of a car while someone else was driving.
If I bought a baseball bat, thn hit myself in the head with it, and sued the manufacturer, saying, “Hey, this thing is very hard and capable of hurting me,” well, I would certainly hope to get laughd out of court.
McDonalds oweed her NOTHING. $800 is a “here’s some money, now go away” offer, just to avoid court.
shortbill,
Yeah, TTP is totally biased and stuff, while the Association of TRIAL LAWYERS is not. OOOOOOOkkaaaaaaaayyyy…
Actually, you can find a very good rebuttal to just the charges you are making at, IIRC, PointofLaw.
Nash,
Yes, same facts: bought coffee, spilled coffee on self causing burns, sued business that sold coffee. The other “facts” you mention are completely irrelevant.
Actually, that’s not quite true – only 700 burns out of the billions of cups of coffee McDonalds has served would actually be a very strong evidence that McDonalds coffee is far safer than A) any automobile, B) most kitchen utensils, C) owning a dog, etc, etc.
Age of defendant DOES NOT MATTER. Area of burns CAUSED BY DEFENDANTS OWN ACTIONS does not matter. Place where burns happened (not on sellers place of business) DOES NOT MATTER. Degree of burns CAUSED BY DEFENDANTS OWN ACTIONS does not matter (what if I bought a knife, cut myself with it, then sued the company claiming it was “sharper than I think it should have been”? Would it matter where or how badly I had CUT MYSELF?)
In short, those things affect the sympathies of the jury, not the actual facts of the case. Go read what the jury has said – basically, they felt sorry for the woman (due to placement and degree of burns), felt that McDonalds execs weren’t sympathetic (in other words, if they had just ACTED better on the stand… you want our legal system to be based on acting ability?), and misunderstood the term “statistacally insignificant” (taking it to mean that McDonalds just didn’t care, when in fact it meant that their coffee had an EXCELLENT safety record).
“Same elevated temperature?”
Please please PLEASE stop repeating this ridiculous falsehood. Retail coffee can barely BE elevated, even if one tries – water boils away at 212 F, and the standard temp is 190 F, and I assure you that they weren’t boiling the coffee while it waited.
190 F is not elevated, it is the STANDARD. Go to Starbucks TODAY and you’ll find the same thing.
Deoxy
Oops, sorry nash – confused you with Capriccio. (Your points were about the same, and the rebuttal is basically the same, but what I said you said, Capriccio said.)
Just to make it clear:
You are ASSUMING “negligence”, when that temperature (190 F) is the industry standard. Unless you are claiming the entire coffee service industry in the US is negligent BY POLICY… In which case, well, I’m leaving, because you can’t be reasoned with.
Offers of settlement are not admissions of guilt or wrongdoing – they are a product of a system where a completely innocent party must defend themselves AT THEIR OWN EXPENSE – meaning that, often, it is cheaper to give a small payout than defend.
“Identical”, meaning “same relevant facts”: plaintiff bought product, plaintiff injured self negligently with product, plaintiff sued supplier of product, defendant’s alleged “negligence” was to supply product to standard specifications.
Capriccio
From Deoxy:
“See recent $14 million verdict for the guy who got hit with a phone. $14 million?!? Hey, hit me next, I beg you! Instant retirement!!)”
Hey, guy, I’d love to answer your plea here…as long as we’re talking one of those big, black anvil-like phones we used to have around the house in the Leave it to Beaver Days and not some delicate little Nokia. But if you really believe you or anybody else would–or DID–get 14 million for it from any jury in America, you’re even sillier than your posts make you sound.
Steve
The testimony at trial in the McDonalds case was that McDonalds served its coffee approximately 20 degress hotter than other establishments, and that such a difference means that third-degree burns result much faster from a spill. Apparently the plaintiff’s real world evidence regarding standard temperature was deemed more credible than the defendant’s expert saying 185 degrees is the standard temperature because they say it is.
I’m afraid the facts of the case are a lot more compelling than Deoxy’s persistent use of capital letters. The finding of liability in this case was absolutely unremarkable, but because this case managed to capture the public consciousness, many tort reform advocates feign outrage even though they know better.
Bobo
It wasn’t a verdict, but Russell Crowe is in fact paying that much money to make the “victim” happy and to make the situation go away.
Nash, to move back to the previous part of the discussion over overlawyered’s observation that the LA Times piece is mischaracterizing the Winnebago issue, they’re right. It may well be true that at one time, there were 11 (out of how many thousands?) of news outlets that reported then retracted the story. News outlets make mistakes (Wendy’s chili, anyone?) What Ted Frank points out is this:
1) There is absolutely no evidence or reason to think that the tort-reform crowd created or propagated that myth, and
2) If you search current websites or google the issue, what you find is debunking and virtually nothing else.
Frank’s statments are accurate and credible. That doesn’t automatically make his side of the argument the only valid one, but it’s important that you realize how very wrong you were in thinking that he had lost credibility by making accurate statements.
As far as the studies that are cited by both sides to prove that there is/isn’t a problem with the tort system that needs solving, it’s difficult because both sides will find fault with the methodology of the other, and without investing many, many hours poring over each study, there’s no way the lay person will really know what to believe. I’m generally more prone to believing people who aren’t personal injury lawyers, because that’s a crowd of people that has less credibility than any other I can think of and has the most direct and obvious financial stake in using any method possible to sway the law in their favor, or to bend it anyway if they can’t.
It does seem clear, though, from the evidence and just from common sense, that our American society is vastly overlitigious, and the fact that personal injury lawyers now find it not only ethical but necessary to run ads on TV soliciting clients who would otherwise have never even had the idea to sue when such ads at one time were neither ethical nor necessary is sufficient evidence in and of itself. Even for the die-hard corporation hater who isn’t concerned with justice but only wants money to go from the rich to the poor for any reason, there really can’t be any doubt that things have gone horribly wrong with our tort system.
Ted
Steve: you’re repeating an urban legend. The plaintiffs’ evidence *didn’t* show that Liebeck’s coffee was unusually hot, just that it was in the top third of 38 restaurants (including 20 McDonald’s) that were tested (with no evidence that any controls were used in the test). Three other restaurants were serving coffee as hot; to this day, Starbucks serves coffee that is hotter because, well, that’s what good-tasting coffee should be served at. The plaintiffs’ theory was actually that anything over 140 degrees is unreasonably dangerous.
Ted
Capriccio: yes, identical, in that the identical theory of liability was rejected. The distinctions you ask about shouldn’t make any legal difference (are you claiming that Liebeck shouldn’t recover if she were 63 instead of 79?), other than the possibility of the “700 complaints” issue, but there, the distinctions don’t matter because the plaintiffs in cases not involving large chains that had multiple complaints charged that the defendants should’ve been aware of the danger of hot coffee from the publicity from the Liebeck case. Every one of those fourteen courts (and a dissent in the fifteenth) would’ve thrown out Liebeck’s case under the reasoning they used to dismiss their case.
Ted
Mr. Furious, you claimed that the Winnebago case was the second-most cited case in favor of tort reform. I asked you to back up that claim (which appeared nowhere in the LA Times), and you admitted that you had made that up. So if I act like you make stuff up, it’s because you make stuff up.
Steve
Ted, I’ve done my research. Submitting evidence of what other restaurants actually do is certainly a valid method of proof; tort reform advocates seem to rely on the argument that if an expert witness says the “industry standard” is 185 degrees, then a jury is required to accept that, even if the evidence shows most restaurants serve it cooler. Nor does the fact that some tiny number of other restaurants serve coffee just as hot establish that McDonald’s acted reasonably as a matter of law.
These arguments that seem to strike you as automatically correct would most likely have been routinely rejected on appeal.
capriccio
Hey, Ted, cut the “theory of liablity” bullshit. You guys claim 14 of the 15 cases were identical…as you can see, most of the posters here are not morons (not all, alas, but most). We know what identical means, and we know this is no mere matter of semantics, but the way you guys play your game to keep the yahoos all heated up so they think the little old Mrs. Liebecks are really the ones responsible for the sick state of American health care, the extortionist practices of the American insurance industry and the general decline in American civility because they don’t have the wit or the balls to hold corporate America responsible for a single, solitary thing.
Nash
Bobo, you just crawled out on a limb and it snapped under your weight.
Here’s you,
in which, to protect Frank’s authority and reputation, you are forced into maintaining the comically awkward position that CNN and US News & World Report are just tiny bit players of no great influence on the national discourse (“there were 11 (out of how many thousands?) of news outlets”) AND also forced to into quietly creating a false “statute of limitations” (“It may well be true that at one time”) on the damage done when major outlets such as CNN and US News & World Report report false information and then either fail to retract or retract with much less fanfare than they originally published the fraudulent stories. The New York Times has perfected this technique–publish the breathless “WMD in Iraq!” story on page A1 on a weekday and the explanatory retraction story on page A24 on Saturday.
Here’s Frank in response to the Times article:
The Times article correctly points out that the publication of false stories like the Winnebago one has mininformed, enraged and emboldened the public, thus serving as a brisk breeze under the wings of the tort reform movement. Is the tort reform “based on” these myths? I don’t know, I rather doubt that is the only factor, but Frank’s disinformation is reprehensible.
You took your cue on the “what are they talking about now” sleight-of-hand from this misdirection by Frank:
As I pointed out, major press outlets (not your ridiculous 11 out of thousands) put the legal urban legand out there and either failed to retract or retracted in a tepid fashion, ala the New York Time’s pioneering technique. Thus, Frank’s statement that if you Google it now, you will find that people are discussing that the myths are myths is an intellectually dishonest bit of misdirection. Have you any studies to prove that a majority of people now know that these stories are myths?
[Pause]
I thought not. My hypothesis before you spend money and time on that research: A significant number of people still believe that these legal urban legends are factual. Reason for hypothesis: running through all of Frank’s “if you Google what people are saying about them now” results that I looked at is the fact that people are indeed saying these are just myths BECAUSE other people keep dredging them up as received truth! Get back to me when you can falsify that, please.
That makes Frank a dishonest hack and harms you by your attaching yourself to him.
Once again, here’s you:
No, when they are not inaccurate, they are intentionally meant to make people draw incorrect conclusions.
He shot his credibility with that verbal wordplay and you can’t get it back for him
Once again, here’s you:
This is an bonus bit of misdirection, but this time you aim it specifically at me and the other readers here. I never discussed whether the tort-reform crowd created or propagated that myth and you cannot claim otherwise. You and Frank are welcome to argue with the LA Times concerning that to your hearts’ content.
I would simply note the undeniable fact that even if the tort-reform movement did not create or propagate these myths, they have benefitted (financially and other support) from having some people out there continue to believe them.
Meanwhile, on the basis of what I sctually DID address, there is no ethical defense of Frank’s fraudulant argumentation.
You:
Yes, because they are forced to debunk what continues to be posited by someone else as a truth.
Bobo
Nash,
Thanks for the response, it’s at least good to clarify that we’re at best talking past each other, and at worst (and probably more accurately), you’re building a rather large straw man.
The news outlets mentioned are not minor, and of course, no one said or implied they were. My point is that the majority of news outlets didn’t report this as true. Has the tort reform movement benefitted from this? It’s possible, although no one has offered any evidence that it’s true, but again, neither Mr. Frank nor I ever disputed this. If I were to look up references to the earth being flat, I’d find more information debunking it than information supporting it, but that wouldn’t mean that it’s because most people think the world is flat and that “other people keep dredging them up as received truth” to use your words. I’m puzzled as to why you’re bringing up the point again. To review, the point that was made was that there was no evidence to show that any tort reformer fabricated this to advance the movement. That point stands, as your failure to address it shows. And of course, since that was the point that was being made, the rest of your post doesn’t have much relevance.
Do I have proof that most people know they are myths? No more than you have proof that most people think they’re true. Again, it’s beside the point since the issue at hand is whether or not tort reformers created or use this to garner false support. Let’s try to keep to the topic at hand. If we wanted to change topics, we could see how much proof you have that most people realize that the phantom phenomenon trial lawyers got onto major news outlets about the Audi 5000’s automatic acceleration was debunked and never had any truth. I’d wager that most people still remember the 60 Minutes show, and not the studies after that debunked it. But let’s skip that. The point is that tort reformers didn’t make up or advance the myth, and Mr. Frank’s statements weren’t inaccurate in any way.
So after all that, perhaps it’s really the case that we agree, after all. We just argue points that the other isn’t addressing. It just sounds like you’re trying to attack the arguments Frank made, when in fact you’re simply changing topics and attacking arguments that weren’t made. I’m just left wondering why.
Nash
Bobo,
You moved the goal posts in your first response to me and then further moved them just now. If I knew how to link to a message on this same thread, I would, but in place of that, here’s my original post. If anyone started talking past the other, it was initiated by you when you responded to this:
You, just now:
You are the one who responded to me and introduced an issue I never raised in any way. Please reread the post I made originally–at no time to do I argue for or against Frank’s assertion that the LA Times piece is suggesting that tort reformers fabricated the myths to advance the movement or for any other reason.
So, this from you:
is a study in disingenuousness. It is the point YOU are making. It is NOT the sole point attempted by Frank, it is one of SEVERAL points he wishes to make. I challenged another of Frank’s points (actually, with what I snipped, two, the other being hot coffee). Since in my original post, I didn’t challenge this point made by Frank and you, you surely see how it is just a tad precious for you to continue to insist that I speak to something I never sought to refute in the first place. We aren’t talking past each other, once again you are misdirecting past everyone.
Again, Frank makes several complaints about the LA Times article, I specifically challenge him on two, and by way of defending him, you berate me for not defending a refutation of a third assertion made by Frank that I never made. Further, you rather triumphally state that because I won’t defend an assertion I never made, your case is proven.
You:
I don’t assert I have proof. I do assert that Modern Googling shows evidence that some in “the public” still believe the myths. I also assert that this can only aid the tort-reform movement. But really, flat-earthers? Is it your intention to rest on that comparison–that if a few people still say the earth is flat (a debate with no demonstrable bearing on a modern controversy) , then it is of equal non-importance that some people still say Winnebago got sued for cruise control mayhem (a belief with unshakable connection to a current controversy–tort reform)? A rhetorical flag planted in the sand for you there?
You:
I challenged Frank on two claims. When you jump in to rebut me, you cannot logically tell me that the issue at hand is something other than what I specifically challenged. It is the issue you wish to emphasize, not one I debated in any way. In short, you are the one not keeping to the topic at hand.
You:
I disagree with your characterization about what was implied. However, more important to me is the refutation I made of Frank’s misdirection in his comment:
It’s not true on its face (they are refuting it because others are asserting it) and it is meant to obscure the fact that one of the LA Times’ claims, that the media credulously sold these myths as true and then insufficiently walked back the lies, is absolutely true. This NYT technique is a little like the courtroom scene in “Anatomy of a Murder,” where after the judge instructs the jury to disregard something that they should not have heard, the defendant asks his attorney how the jury can do that. That is the point, says the attorney, they can’t. But I digress.
So, you are welcome to post your own comment making your additional point the “topic at hand” and making your case about it. Don’t defend Frank and yourself by chiding me for not addressing what I never challenged. I conclude that Frank has no credibility on account of his verbal misdirection and that John Cole is misguided if he gets into bed with him.
Nash
After all, we mostly do seem to agree. But it is a frustration to have you accusing me of doing what in fact you were the one doing–changing topics. That is your why.
Bobo
Nash,
I think we’re getting closer. The point I was responding to was that you were asserting that Frank’s credibility was destroyed by what you said were false assertions. I then showed you that the assertions were true, and showed you that the way you made them seem untrue was to add a new topic and make it appear as though he was saying something that he wasn’t. The fact that 11 news outlet printed and retracted what was a false story doesn’t relate to Frank’s credibility in any way. That’s really all there was to it.
The flat-earth point still stands, however. The principle you seem to want to use is that if you can google something that states a premise is false, it follows that a significant number of people must think it’s true. The principle is silly. I’m sure you can see that.
Ted
Steve and capriccio, the fact remains that there are at least fourteen other cases where plaintiffs who were burned by coffee sued on a theory that a coffee vendor was liable solely for (1) serving hot coffee and (2) failing to adequately warn of the risk of burns, and the courts threw those cases out.
The wording I used to describe the state of play on the Internet appears to have unnecessarily confused the issue, as demonstrated by Nash’s argument that I’m ignoring Walter Williams (when in fact, Overlawyered criticized Williams for repeating the glurge), and I’ve posted a clarification.
Bobo makes a good point that I also raised on Overlawyered: if you want to talk about urban legends and tort reform, the urban legends about the Audi 5000 or the Ford Pinto or breast implants (or the increasingly popular urban legend that McDonald’s did something meriting punitive damages in the Liebeck case) have had a far greater impact on the tort reform debate than any Winnebago tale.
Nash
Bobo, you are a dishonest hack and I am through with you.
Bobo
The “I’m taking my ball and going home” defense! I think I hit a litle too close to home. It was nice chatting with you. Best of luck.
Nash
[snicker]
Yes, I’m chagrined and absolutely paralyzed with fear by the person who contines to refute something I never said because he wasn’t able to refute what I did say…for the very inconvenient reason that what I said was true.
Meanwhile, the gentleman he is defending with rubbish is enough of a mensch to acknowledge that I was correct about that point and update his post accordingly.
On that basis, I retract my statement about Mr. Frank’s credibility. Meanwhile, his erstwhile protector’s credibility is on display for everyone to judge.
So, yeah, you really got me there.