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November 2007 Archives

The McDonalds Myth

Ever hear someone rant and rave about the "McDonald's Coffee Case?" About how "that's what wrong with our Court Systems," and other ignorant nonsense? They're wrong. They're spouting - and repeating - MYTHS. Here are the FACTS... MYTH #1: "The Coffee wasn't that hot..." FACT: McDonalds coffee wasn't just hot, it was scalding, capable of almost instantaneous destruction of skin, flesh and muscle (see below). MYTH #2: "Stella Liebeck was acting like a fool, driving and handling the cup." FACT: Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds. The grandson stopped momentarily so that Liebeck could add cream and sugar to her coffee. She placed the cup between her knees and tried to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap. MYTH #3: "I heard she wasn't even that badly burned..." FACT: The sweat pants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. She had to undergo painful, repeated debridement treatments. MYTH #4: "She held out for millions..." FACT: Liebeck sought to settle her claim for $20,000, but McDonalds refused. MYTH #5: "Poor McDonald's was caught by surprise..." FACT: During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonalds' knowledge about the extent and nature of this hazard. McDonalds also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees to maintain optimum taste. The McDonalds witness admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees. Further, McDonalds' quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee. Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn. McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder," since the location of the writing would not warn customers of the hazard. MYTH #6: "This case is about crazy juries giving millions away..." FACT: The jury awarded Liebeck only $200,000 in compensatory damages despite the seriousness of her injuries. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. In order to punish McDonald's for its horrid, willful conduct, however, the jury also awarded Liebeck $2.7 million in punitive damages. Yet that amount is equal to about two days of McDonalds' coffee sales. Yet, even given that paltry amount, the trial court ALSO reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful. No one will ever know the final ending to this case. MYTH #7: "So what? How does this verdict even matter? Nothing's gonna change..." FACT: Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees. SO, what have we learned? First, don't shed a tear for corporations. Second, don't believe the thirty second sound bytes, especially not the ones from conservative commentators, who've taken lies and half-truths to an art form. Third, be wary of "secret settlements" which let corporations make millions off the PR of "poor us" while GAGGING the victim. Fourth, finally, and most important of all: LAWSUITS CHANGE CONDUCT AND MAKE US ALL SAFER: CORPORATIONS AND THIER POLITICAL STOOGES DON'T. The parties in this case, at the insistence of McDonald's, eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned.

Caps On Damages Dont Work

"Caps on Damages Don't Work" This excellent editorial appeared on Newsday.com on Oct 17 2007:" Darrie Eason is a penetrating example of what's wrong with proposals to cap damages for pain and suffering in medical malpractice cases. The high cost of malpractice insurance is a problem. But adding insult to patients' injuries by arbitrarily limiting jury awards is not the answer. Eason was told she had cancer. One double mastectomy later, doctors told her the devastating diagnosis was a mistake. Her tissue sample had been mislabeled. She never had cancer. Tragically, by then her breasts had been removed. If it's proved that her travail was caused by somebody's negligence, she can collect economic damages - lost wages and the cost of hospitalization, surgery, physical therapy and the like. But that just covers her expenses. So, what else is there? Whatever a judge or jury considers just compensation for her pain and suffering. Under current law, without caps, she could be awarded millions of dollars. Impose the cap sought by President George W. Bush and congressional Republicans, and she could get no more than $250,000. Would that be just? What's the anguish of losing two healthy breasts worth for a single, 35-year-old woman? Right now that's for jurors to decide, as it should be. Virtually all the other actors in malpractice dramas - insurers, doctors, lawyers, hospitals, laboratories - have deeper pockets than the typical person who sues. People like Eason shouldn't be forced to bear the brunt of the cost of fixing the nation's malpractice insurance problem." Every independent study done on caps on damages awards compels the same conclusion: THEY DON'T WORK. The caps issue is, in simple terms, a corporate and insurance HOAX perpetrated on the public and on the professionals - including lawyers - who pay insurance premiums. Don't vote for candidates who sing this song, because they're almost certainly taking BIG campaign contributions from insurance and business executives. Do you think people like that have best interests at heart? Well, neither do their pet candidates.

A Rose By Any Other Name - Marriage

The NJ Supreme Court's decision in Lewis v. Harris, which recognized as fundamental a same sex couple's right to have all the benefits of marriage, was, in the classic sense, a compromise borne of cowardice. My point is not to 'debate' same sex marriage. There is no debate. Marriage only comes in two forms: a religious ceremony, performed by a cleric, which carries no civil effect, and a civil marriage, which is the state's recognition of an economic relationship. Despite the pomp and frippery of a religious ceremony, it is the state that makes it official. As long as no law can tell a temple whom it can marry, then it follows that no temple can tell the law whom it can marry. Any objection to same sex marriage equality is thus a religious objection. It is therefore of no consequence in or to a secular republic. Folk who are not satisfied with holding and expressing their religious beliefs within family and church and who insist that their religious values should dictate state policy should move to Iran to some other such place where religious 'values' dictate policy. I was involved in the Lewis case. I represented one of the amicus parties, along with other counsel. We wished for more. We wished for a rose by any other name. We wanted marriage equality, and now, the battle begins again. NJ's attorney general Rabner recently disappointed us in that effort by suggesting that NJ would 'recognize' marriages from outside of NJ as 'civil unions' only. This is, of course, an insult both to the principle, and also to those couples - and to the states from which they come - who were married where legislatures are braver. It's 'just' a word, is marriage, but then, so is 'justice.'

What Workplace Harassment Says About Our Society

In my last entry, I said I hoped that this blog reveals who I am as a person, because those who come to me for help should have complete faith in my ideals, as well as my skills. Here's the first of those peeks behind the green curtain; it has to do with why I do this work. I know the title references the workplace and our society, but I ask you to bear with me as I start that topic in the past - my past. There's a reason I start this discussion thirty five years ago, in Brooklyn, NY. My mother, who's no longer with us, was Jewish, and dad, who survives her, was Catholic. Nowadays, I suppose, you could call him an agnostic. Neither of them were much religious, and our house was one in which there was no formal discussions of, or resort to, deities. The religious culture was more for both of them about family traditions than belief. As you might expect from such a blend, holidays were many, and were celebrated in what was for our home a pretty unique manner. I remember Christmas Trees and Chanukah menorahs in the window at the same time, sausage and peppers on Passover, potato latkes on Easter, and Catholic and Jewish relatives laughing and eating - and eating and eating - the same dishes, in the same house. I never felt odd as a little guy, having two religious cultures in the same house, because both families loved me. To a child, happily, there's not much more he needs; metaphysics and sociology come later. If there were pressures, or prejudices, between members of the family, I never detected them as a young child, and I remain happily ignorant of them in the present if such ugliness was ever there at all, now that almost all of those adults I remember as a child have left us. But as I got older, I learned the first truth about prejudice and ignorance: it's taught, it's not in-born. In Brooklyn, NY, during the late 60's, 70's and early 80's, my childhood and then young adult-hood was a rich blend of cultures and ethnicities. There was a little bit of everyone and everything. Most of the time, closeness, tolerance and a common sense of "we all live here and the place isn't getting any bigger so let's get along" was enough to maintain relative harmony. Sometimes, it wasn't. "Your (or 'our') own kind" was, sadly, a phrase you might expect to hear from just about every quarter. Jewish parents used it to tell their daughters not to date me because I wasn't Jewish enough. Catholic moms said it for much the same reason. African American students didn't spend as much time mixing with Caucasian students as they might have, and vice versa. Of course there were examples otherwise, noteworthy for their rarity, and so I thought of my childhood landscape as I grew not as a porridge, where everyone became a harmonious part of the whole, but rather as a stew, in which chunks of this and that maintained a distinct taste though on the same plate. I don't recall at what age I remember starting to hear those words - you know the ones of which I speak, or ones like them - but I remember them suddenly becoming part of the background of my life. I remember hearing them directed at others, and I remember hearing them directed at me. In my ignorance, I said them too, as much because the sense of wrongness attending their use was not as compelling as the day to day reality in which those words were so common. Non-Jews called me a 'kike' and a 'hebe' and Jews called me 'half-gentile,' or worse, 'half-goyim.' I suppose half an insult was intended as a more accurate description. 'Gay' and 'faggot' and the like were used to describe the real thing and to imply insult when it wasn't the real thing. The labels were everywhere. All the worst ones you can imagine were sprinkled liberally into the neighborhoods, into the classrooms - though not where a teacher could hear, even if those teachers might secretly sanction the use of those words themselves - and into the homes, the street games of stickball, the bike rides to the playgrounds.

The Road So Far

Welcome to my first blog entry. This feels strange, I have to admit. Even given as much writing as I've done professionally and in expression of my personal muses, I have to admit that the idea of authoring a blog still seems odd to me. In time, I'll get used to the idea. My sense of humility tells me that no one else besides my family and friends will be interested in my thoughts on the law and how the law relates to society. Yet clients and referring attorneys have asked so many questions so often, and suggested I author this blog so often, that I've given in. My intention in the Journey to Justice is to talk about the law. For the most part, I plan to focus both on the specific areas in which I concentrate my trial practice, and more specifically, as to New Jersey, the state in which I maintain my practice. Yet I also plan to raise awareness about the law generally, and the state of our society and culture as a reflection of the law, and as affected by the law. In talking about my areas of concentration in the practice - employment discrimination, workplace harassment, sexual harassment, wrongful discharge, failure to accommodate, sexual orientation discrimination, gender rights discrimination, workplace retaliation, wage and hour, whistleblower law - I plan to talk about the cases, the changes in the law as it evolves, the people affected by those changes, and what this critical area of the law says about us here in New Jersey and in America. When I address the law generally, I hope to correct misapprehensions about the law, and to restore respect for it, and faith in it, as the best means by which we can resolve disputes. It'll never be perfect - nor will any other institution conceived by the minds of human beings - but our goal ought to be to make it as fair, and as good, as we can. That's not just the job of the legislatures, it's the job of every one of us as citizens. We're responsible for the people we elect and what in turn those people do; we're not blameless when we vote for the wrong people and when those people harm the electorate with their actions. We're also responsible for the examples we set, so we're responsible for how we talk about the law, and whether we instill in the next generations respect for it and faith in it. If we treat it with disdain and hostility, then we deserve what we get. To punctuate that last point, I'll close with a quote from Dr. Martin Luther King, who was also human and therefore far from perfect. He said "Injustice anywhere is a threat to justice everywhere." If we all remembered that not only when we interact with the law, but when we relate to others, we'd be doing a great deal better than we are. Something upon which to meditate until we can talk again.

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