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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.
"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.
"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. 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+.
"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.
The standard practice for all lawyer-represented claims in these parts (NY) is
to evaluate the claim and then add 50%, because the lawyer's take is 1/3 of the
final settlement. Fortunately, however, the claims climate is changing and
(bolstered by a stronger jury pool and tighter insurance economy) the
settlements are becoming more reasonable.
Still, I think we have quite a ways to go before the legal system commands some
respect from my perspective.
Stu Leinoff,
ACC