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Re: More Coffee?



Stu Leinhof wrote in response to my comments:

On Fri, 23 Jun 2000 Hugh Haskell wrote (in part):

"My first wife died as a result of a missed diagnosis, which should have
been made (an X-ray, which was normally routine for these types of
complaints, was not taken, and it would have shown the problem
easily). Had the correct diagnosis been made intervention at the time
could have saved her life. As a result I sued the physician and the
organization that employed him and received a moderate sum in
settlement, of which the attorney took 25%.

I am certainly sorry for your loss, and I see nothing wrong with the suit you
filed and won; apparently the court agreed with the merits of that case. They
seem very different from the McDonald's hot coffee case.

My point was to defend the contingency fee system, not to try to
compare the McD case with mine.

"I won't dispute the "deep pockets" issue here. That sort of thing
does go on and I don't know enough about the details of the McD.
incident to be able to say whether this was just a deep pockets thing
or something more."

This is just my point. There may be mitigating circumstances of
which I am not
aware, but this case certainly has all the appearance of exploiting an
unfortunate accident for unreasonable gain; which the legal system thrives on.

But the devil is in the details. The publicity that this case got
completely obscured the facts that make it clear that McD. actually
could have gotten a lot worse, and maybe should have.

"It's not where the coffee starts
from, it's where it ends up. If the slip or jostle or hit that causes
the spill launches the coffee on the right trajectory, it will end up
in your lap."

This is certainly true in determining what the damages might be, but it is not
particularly relevant in determining culpability. If, in fact, the coffee was
spilled because of careless handling, it doesn't matter what path it took to
find its way into her lap. If she were sitting at a table with the cup firmly
supported as it was opened I doubt we would be discussing the issue now.

"My understanding is that the large damage award from the jury
was later substantially reduced by either the trial judge or on
appeal (this happens quite often in this sort of case)."

This is GOOD news (in my opinion) and, I believe, it validates my contention
that the original award was unreasonable, given the merits of the case.

"But . . . if McD. had been told by competent authority to lower the temp. of
its coffee, and they didn't, then I don't have much sympathy for them.
They deserve whatever they got."

If indeed they did ignore competent authority they should be held
liable to some
degree; but I do think there should also be limits... penalty
commensurate with
the degree of the transgression.

The penalty has to be severe enough to get the attention of the
transgressor. In the case of a large corporation, a small penalty is
petty cash. When the typical fine for simple speeding is on the order
of $100, do you think that a fine of $125 for drunk driving will have
much effect?

Again, there may also be mitigating
circumstances on the side of McD; e.g. was the thermostat
inadvertently turned
up by an employee who was not advised of the new coffee policy? Why would McD
Corp want to deliberately ignore sound council?

"Are you in a position to testify that this was a frivolous lawsuit?
About the only two facts that we know about for reasonably sure is
that the lady was seriously burned by too hot coffee and the
management of this particular McD had been told of it and chose to
ignore the warning. Unless there is information that hasn't become
public, I don't see much evidence to support a charge of frivolous
suing here."

No, I don't care to testify about anything regarding this case. I can see how
McD might bear some burden of responsibility, as stated in my
original post, but
certainly not all of it, ...and not to the tune of $1,000,000+.

I suggest that you go back and look at Mariam Dittman's posting from
last Friday. From what she says, it would appear that McD did on fact
have a great deal of complicity in the case, regardless of the
circumstances under which the coffee was spilled, and the plaintiff
was initially asking only for medical expenses, which in its
arrogance McD denied. Conclusion: they got what they deserved, and
since the judge reduced the punitive damages, they probably didn't
end up with near as much as they deserved.


"Certainly frivolous lawsuits occur."
We DO agree!


"...there are a lot of suits that
are fully justified but which would never be brought if our system
didn't make it relatively easy to do it and allow the lawyers to take
the case on a contingency fee basis....So please don't throw out the baby with
the bath water. We may have
to tweak the system a bit to keep attorney's fees from getting
outrageous--I have heard rumors of attorney's fees of 50-60% of the
settlement, and I think that is wrong. But even if the contingency
fee system gives rise to some frivolous suits, and I'm sure it does,
it is too valuable to get rid of, because it is the only way people
of modest means or less have access to the courts. And they are the
ones who need it more than anyone else."

Agreed. I would only add that, Like Rick Tarara (who I think is
right on target
in this topic) my wife brings a unique perspective to the subject. She is a
litigation claims adjuster for a large insurance company. She has
routinely had
to pay substantial amounts for obviously frivolous claims when the cost of
litigation and potential jury exposure was prohibitively high. The cost of
paying these claims, of course, is reflected in the premiums I must pay.

I have long held that this policy on the part of insurance companies
is incredibly short-sighted. One of the reasons that frivolous suits
are filed by unscrupulous lawyers (and often with the guilty
participation of the plaintiffs) is that they know that if they raise
the price high enough, the insurance company, fearful of a huge
judgement against them will settle. Most of these lawyers know that
their chance of winning these cases in court is low, so they are
looking for a settlement offer that will bring them a net profit
quickly. If they knew that they were going to have to go to court,
and that the backlog was such that it would be years before they
would get there, thus raising their costs and reducing their chance
of any profit, many of the cases would never be brought.

So, the insurance companies IMHO have to bear some of the
responsibility for the problem. If they were willing to stand and
fight on principal, knowing that they would lose sometimes (there's
always appeal), they would go a long way toward discouraging
frivolous suits. They need to take a longer view, rather than
calculating on a case-by-case basis and giving settlement the benefit
of any doubt.

Of course, if the corporations that are the defendants in most of the
cases would stir up the ethical sense to admit when they were wrong
and offer reasonable settlements immediately (but fight to the death
when they are right), then the amount of lawsuits could be even
further reduced.

Nobody is arguing that the tort system is perfect, but it is there to
redress wrongs that people and suffered. If the responsible parties
would be a bit more willing to own up to their wrongs, and if their
insurance companies were a bit more willing to fight when they are
convinced they are being hijacked, we would all be a lot better off.

Hugh

--

Hugh Haskell
<mailto://hhaskell@mindspring.com>

Let's face it. People use a Mac because they want to, Windows because they
have to..
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