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Coffee and Torts
April 16, 2011 6:07 AM   Subscribe

Hot Coffee, a documentary film by Susan Saladoff, debuted at Sundance to considerably more enthusiasm than one would expect for a film about tort reform.

Saladoff is a first-time filmmaker, having spent twenty-five years as a civil litagator. Hot Coffee undertakes to debunk our consensus narrative about the case of Stella Liebeck, who sued McDonald's after being badly burned by spilled coffee. The case was famously parodied on an episode of Seinfeld. (previously) The film goes further; using three other recent cases to argue that the brief for tort reform is built on myth and held up primarily by the lobbying efforts of the U.S. Chamber of Commerce and affected corporations. (previously) The backlash has already begun.

Hot Coffee is currently making the festival circuit; I saw it yesterday at Full Frame, and will see it again at the Atlanta Film Festival in May. It will appear on HBO in June.
posted by steambadger (32 comments total) 25 users marked this as a favorite

 
When I moved to NZ, I found out that there were very few personal injury lawyers as compared to the amount I knew of in SoCal. This is due to the fact that if someone gets injured, the government picks up the hospital tab regardless of fault. This was enacted not only to let the courts handle the more important claims...but because the government actually gives a damn about people who are in need of medical assistance.

So yeah, I think I'm gonna stay here forevs.
posted by hal_c_on at 6:15 AM on April 16, 2011 [11 favorites]


This explanation by ShawnStruck of the case was an early indicator to me that MetaFilter is completely awesome.
posted by hydrophonic at 6:35 AM on April 16, 2011 [14 favorites]


my old torts professor debunked that on day one of class. everyone in the legal profession knows its bullshit.

What I don't get is that half the guys pushing this defend tort litigation. they are on panels from insurance companies which pay low rates and they are attacking the very system that pays their way. they are trying to reform themselves out of a job.
posted by Ironmouth at 6:37 AM on April 16, 2011 [1 favorite]


I saw this at Full Frame yesterday too (hey, neighbor!). It's a very compelling film, but I wish it had better ideas for the call-to-action section of the credits than "write your congressman." When you've spent 80 minutes establishing the endemic corpocratic corruption that runs across all levels of American democracy, "write your congressman" and "be a more savvy consumer of media" seem like sick jokes.

Unionize your workplaces, give money to progressive causes, volunteer, boycott -- these would still be insufficient to the scale of the problem, but would at least be a *start.* But Hot Coffee apparently took An Inconvenient Truth's "change your lightbulbs" as the upper bound of possible political action. This is why we can't have nice things.
posted by gerryblog at 6:53 AM on April 16, 2011 [7 favorites]


I saw this at Full Frame yesterday too (hey, neighbor!). It's a very compelling film, but I wish it had better ideas for the call-to-action section of the credits than "write your congressman." When you've spent 80 minutes establishing the endemic corpocratic corruption that runs across all levels of American democracy, "write your congressman" and "be a more savvy consumer of media" seem like sick jokes.


You better write your congressman. They are the persons drafting the legislation. But don't ignore your state rep, who will be even more important to this battle.

You bet they look at those letters. They are massively interested in what people think, its what gets them elected. The reason this shit flies is because tea party robots write their congressmen in huge numbers. Not writing your congressman is the source of this problem.
posted by Ironmouth at 7:00 AM on April 16, 2011 [4 favorites]


considerably more enthusiasm than one would expect for a film about tort reform.

The audience is probably expecting something else.
posted by furiousxgeorge at 7:18 AM on April 16, 2011 [3 favorites]


Of note: tort reform does not reduce healthcare costs or the practice of defensive medicine. From a December 2008 study:

1. Caps of noneconomic damages did not translate into lower health insurance premiums for consumers. Various types of analyses did not alter this finding.

2. A survey of empirical research does suggest tort reform has constrained the growth of malpractice premiums for providers but, as these authors note, these premiums are a very small component of health care costs and do not have much impact on overall costs.

3. From research by others, it is less clear whether doctors change the way they practice medicine after tort reform, although there is evidence of some cost reductions in cardiac and obstetric care.

Personally I support a no-fault compensation scheme akin to workers' compensation. Call it patients' compensation (sort of like New Zealand's system). It'd be paid for partly by doctors' contributions to an insurance plan and partly by government subsidy. Such a simple scheme would mean most people wouldn't even need an attorney to make a claim.
posted by jedicus at 7:23 AM on April 16, 2011 [2 favorites]


When, and why, did it become such a money maker for crappy lawyers to go into Personal Injury? I'm not pro-tort reform, because of things exactly like the McDonald's case. But, it seems there is a problem when law firms hire cold calling firms to solicit cases from traffic accident reports. How you address the bottom feeding, back of public bus advertising, get rich quick, lottery-like lawyers without breaking the system for real STICK IT TO THE MAN type cases?

[e.g. My car was hit by a police officer, clearly their fault, they didn't have any issue with paying for damages. It was an *accident*. My phone rang two separate times from people representing firms that advertise on television. If I'd been up for it, I probably could have settled with the state for more than it cost to fix my car, but why?]
posted by DigDoug at 7:29 AM on April 16, 2011


When, and why, did it become such a money maker for crappy lawyers to go into Personal Injury?

Money maker? There are a few PI lawyers who hit it big, but most of the wealthy ones are wealthy because they have a lot of poorly paid associates doing the heavy lifting. They aren't wealthy because the cases rake in a lot of money; they're wealthy because they're operating a high-volume, low-margin business. Most PI lawyers don't make very much money.

How do you address the bottom feeding, back of public bus advertising, get rich quick, lottery-like lawyers without breaking the system for real STICK IT TO THE MAN type cases?

There are several causes: first, income inequality, poverty, and lack of options leads to people turning to lawsuits in the hopes of getting rich. Second, deregulation of businesses and the dismantling of infrastructure mean more injuries in the first place. Third, dismantling of the social safety net means that injured people often have no choice but to sue in order to be compensated. There are lots of other reasons, but those are some big ones that can be fixed without breaking the system for "real stick it to the man" cases.

One of the dark sides of ending government regulation and social welfare programs is that every injury has to be compensated by a lawsuit and bad behavior will only be curtailed by the threat of suits. That's the "self-regulating free market" at work. That many conservatives also want to prevent that self-regulation demonstrates that they aren't actually fans of the free market, they just want to make money even if it means hurting individuals and society.

My phone rang two separate times from people representing firms that advertise on television.

What? Did a live person call your directly or did it start with a recording?
posted by jedicus at 8:00 AM on April 16, 2011 [13 favorites]


"When I moved to NZ, I found out that there were very few personal injury lawyers as compared to the amount I knew of in SoCal. This is due to the fact that if someone gets injured, the government picks up the hospital tab regardless of fault. "

I believe all companies in NZ pay into the fund that allows the government to pick up the tab. Industries that make riskier products pay more; industries that make safer products pay less. These numbers are constantly adjusted so there's an incentive to build a safer mousetrap if the mousetrap industry is cutting off fingers left and right; your "tort fee" to the government is going to be quite high.

(There are some other funding aspects as well; I believe some government penalties assessed against unsafe companies can go into the funding, and I think motorists all pay a tax into it? Also I think it covers both tort and workers comp, so there are a variety of things going on there. But the basic idea is as above.)

But yes, the point is that it reduces costs of litigation while providing for injured citizens AND incentivizing companies to build safer products. I think we all want #2 and #3, but #1 is not the only lever to provide #2 and #3. Tort reform pretends that getting rid of ALL levers to encourage responsible corporate behavior is the only way to cut litigation costs.
posted by Eyebrows McGee at 8:15 AM on April 16, 2011 [2 favorites]


my old torts professor debunked that on day one of class.

I was dropping in to say precisely this.
posted by joe lisboa at 9:08 AM on April 16, 2011


You bet they look at those letters. They are massively interested in what people think, its what gets them elected. The reason this shit flies is because tea party robots write their congressmen in huge numbers. Not writing your congressman is the source of this problem.

The pro-corporate tilt in legislation and court decisions of the last few decades really isn't the fault of "tea party robots" writing letters. In fact, as has been extensively documented, the "tea party movement" as a whole is exactly the sort of corporate-backed, astroturfed front group that is critiqued by Hot Coffee itself.

In any event, the idea that representatives are interested in the opinions of their constituents in anything but the most superficial sense strikes me as almost impossibly naive.
posted by gerryblog at 9:23 AM on April 16, 2011


I'm not usually a documentary person, but this is pissing off enough of the right people that I might need to check it out. Thanks!
posted by kafziel at 9:59 AM on April 16, 2011


no trailer??
posted by Bwithh at 10:30 AM on April 16, 2011




Thanks for the cracked link, I know about the McDonald's case but the rest were new to me.
posted by furiousxgeorge at 11:09 AM on April 16, 2011


This explanation by ShawnStruck of the case was an early indicator to me that MetaFilter is completely awesome.

So true! I gather that McDonalds would rather spend millions in court, fighting both the honest people looking for reparations and the dishonest ones, than consider decreasing the coffee temperature thus preventing the possibility of 3rd degree burns.

BWWA , I sell coffee at 180F to 190F but I didn't know the centuries old fact people may easily get seriously hurt BWAAA....*sniff*.... pretty pretty please judge whose son I will hire pretty soon.....*sniff*..... rule that scolding hot liquids aren't dangerous BWAA subvert the laws of physics for the invisible *moan* I promise I will trow a tea party fundraising for you *sniff*

Ah the crybabies of the free market! Gitt of me market you morans!
posted by elpapacito at 11:30 AM on April 16, 2011


Even when I was young, I could not figure out why this was controversial. No product that YOU PURCHASE TO PUT IN YOUR MOUTH should be at a temperature where it can actually burn your skin to that degree. This should just be generally accepted, shouldn't it? If somebody had sued because they spilled their coffee and got a stain on their favorite pants or something, that would be ridiculous, but you're supposed to drink this stuff. My mucus membranes demand beverages that are not capable of doing that sort of damage.
posted by gracedissolved at 1:27 PM on April 16, 2011


You bet they look at those letters. They are massively interested in what people think, its what gets them elected. The reason this shit flies is because tea party robots write their congressmen in huge numbers. Not writing your congressman is the source of this problem.

Whoa...shit.
posted by hal_c_on at 3:09 PM on April 16, 2011


Looking in from the outside, I think that the prevalence of ambulance chaser PI lawyers doesn't spring from tort law alone, but rather from the combination of punitive damages and the common American practice of taking cases on contingency where the lawyer takes a cut of damages awarded by court or settlement. In contrast, the Code of Conduct of The Council of Bars and Law Societies of Europe, along with many national bar codes of conduct, forbid this practice:
3.3. Pactum de Quota Litis
3.3.1. A lawyer shall not be entitled to make a pactum de quota litis.
3.3.2. By “pactum de quota litis” is meant an agreement between a lawyer and the client entered into prior to final conclusion of a matter to which the client is a party, by virtue of which the client undertakes to pay the lawyer a share of the result regardless of whether this is represented by a sum of money or by any other benefit achieved by the client upon the conclusion of the matter.
Getting rid of the ambulance chasers, if desired, may then be possible at the cost of perhaps making it harder for poorer victims to acquire legal representation, without reforming the tort system itself.
posted by delegeferenda at 3:11 PM on April 16, 2011


You bet they look at those letters. They are massively interested in what people think, its what gets them elected. The reason this shit flies is because tea party robots write their congressmen in huge numbers. Not writing your congressman is the source of this problem.
Well, it's hard to believe, that's for sure. A much better way to get their 'attention' is to support non-incumbent politicians for party primaries.
posted by delmoi at 3:17 PM on April 16, 2011


No product that YOU PURCHASE TO PUT IN YOUR MOUTH should be at a temperature where it can actually burn your skin to that degree. This should just be generally accepted, shouldn't it?

I agree, but my wife, who adds cold milk to her tea, probably hates you.
posted by BrotherCaine at 4:11 PM on April 16, 2011


I think damage caps are stupid, but I have yet to understand the drawbacks of a loser pays model.
posted by BrotherCaine at 4:13 PM on April 16, 2011


but I have yet to understand the drawbacks of a loser pays model.

If you're going up against a huge corporation, do you want to risk being wiped out if the judge/jury doesn't agree? The other side can handle just fine. There's a huge power imbalance in these situations, and making the risk of suing a company equal to paying that company's legal fees (which could be huge) pretty much guarantees a lack of lawsuits.
posted by wildcrdj at 5:08 PM on April 16, 2011


I might support the idea of a cap on damages for pain and suffering if it were equal to the annual compensation of the highest paid executive of a corporate defendant or its insurance company.

A company can pay its executives hundreds of millions of dollars per year, but then get all whiney when they are asked to pay for the consequences of their negligent actions. How much would the CEO want to be paid to, say, give up his sight? or walk with a painful limp every day for the rest of his life? Yet they want the people that they injure to never, ever be entitled to more than $250,000. It ain't much.
posted by Corvid at 5:19 PM on April 16, 2011


Wildcrdj, good point, but it goes both ways, and "the little guy" also wouldn't be sued as often by larger businesses as a barrier to entry. I just think a legal system shouldn't be geared around increasing lawsuits where the level of proof is that weak in the first place. As opposed to tort reform that strikes at all claimants no matter how strong their case such as capping damages. I recognize that there is no such thing as a perfect tort system, but I think loser pays is a least harm model.
posted by BrotherCaine at 5:30 PM on April 16, 2011


the common American practice of taking cases on contingency where the lawyer takes a cut of damages awarded by court or settlement

The problem is that doing away with this would make it impossible for anyone not rich to sue for damages. My own experience: I was walking along a reasonably busy sidewalk in downtown Oakland at lunchtime one day, past a building that some workmen were moving furniture into, when a bookcase they'd set in the street fell over and landed on my foot. It was my bad luck that I was passing by when it fell, rather than it being one of the dozens of people who'd walked past before I got there or it falling when nobody was there. Other than that, 100% their fault.

I had months of physical therapy, heavy-duty prescription painkillers, time lost from work (it burned all my vacation and sick leave for more than a year), and several periods of weeks on end during which I was immobilized by pain and confined to my apartment.

The first offer from the other party's insurance coverage wouldn't even have paid for my PT. Additionally, the "medical release form" they sent me to sign was written so loosely and widely that it would have given them permission to look at any of my medical records, ever, about anything.

Luckily, I had a lawyer who works on contingency. He amended the release form so it applied only to medical records related to the injury. He got my HMO to decrease the medical lien they'd placed on any potential settlement I might get (standard procedure in a case like this, apparently) by $1000, just by asking. Would I have even known that was a possibility? Not a chance. And the settlement we wound up with covered the post-injury PT and other treatment, as well as including some compensation for the fact that due to the other party's carelessness I spent more than six months in severe pain day in and day out.

Until somebody proposes a mechanism that would ensure that people without money would still have adequate access to the courts and to competent and effective representation, lawyers working on contingency seems worth keeping.
posted by Lexica at 8:11 PM on April 16, 2011 [3 favorites]


Yeah most of the 'tort reform' ideas like loser pays or not working on contingency are about tilting the balance even more in favor of people with a lot more money then the other party. If you're annoying enough to a corporation they'll be happy to sue you even if they don't expect to reclaim their own legal expenses, such as the GeoHot case by Sony or all the RIAA lawsuits against file sharers.

If it was obvious who would win a lawsuit before it went to court, there would never be any reason to go to court. It's a risk just like anything else.
posted by delmoi at 8:44 PM on April 16, 2011 [1 favorite]


In any event, the idea that representatives are interested in the opinions of their constituents in anything but the most superficial sense strikes me as almost impossibly naive.

I know dozens of people who work in the offices of US Congresspersons. They do care a lot. Your understanding of the genesis of the tea party is correct, but that doesn't mean these people haven't been writing their congressman for years on these issues.

A friend once called a congressman's local office in Northern Illinois in the late 90s to give her opinion. 10 minutes later she was surprised when the congressman personally called her back and began asking her questions about her position. He explained that nobody had called on this issue and that he had no idea what his constituents thought about it.

Also, the final push for health care was pushed over the hump by a barrage of calls to Dem reps.

Turning your cynicism into a tool which defeats your very political aims is unwise indeed.

Put another way, if this didn't work, why in God's name would companies throw millions at astroturfing firms in an attempt to replicate it? We only defeat ourselves when we don't use every tool and abandon our duty as citizens to stay involved in the political process.
posted by Ironmouth at 12:16 PM on April 17, 2011


If it was obvious who would win a lawsuit before it went to court, there would never be any reason to go to court. It's a risk just like anything else.

90% of cases settle.
posted by Ironmouth at 12:18 PM on April 17, 2011 [1 favorite]


Well, look, it's not that I think people *shouldn't* write their congresspeople. I do it. I just think it's not enough.
posted by gerryblog at 1:23 PM on April 17, 2011


Yeah, singing telegrams get the message across better.
posted by furiousxgeorge at 1:32 PM on April 17, 2011


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