Tort Reform Is A Bad Idea For Consumers, As It Seeks To Undermine The U.S. Civil Justice System.

The use of lawsuits to compel improvements in product safety has historical underpinnings as a fundamental concept dating back to centuries – old common law, and the U.S. civil justice system. All industries need incentives to improve their practices and the safety of their products. It has been an American tradition that such incentive comes from the imminent possibility of litigation. Beginning in the 1960’s, a series of lawsuits against the automobile industry led to dramatic improvements in automobile safety features. Lawsuits have resulted in safer cars with seatbelts and airbags. Litigation has also been brought to advance policies concerning such matters as tobacco, gun violence, and lead paint.

Firestone Tires

On August 9, 2000, Firestone recalled 6.5 million tires. What lead up to this?

On October 16, 1998, 14 year old Jessica LeAnn Taylor, a junior high school cheerleader was killed while on her way to a homecoming football game in a Ford Explorer (her mother’s friend was driving) when the tread on the left rear Firestone ATX tire separated and caused the SUV to rollover. In the ensuing lawsuit Firestone denied there was any problem with its tires, and fought hard to keep its consumer complaints data and lawsuits private, saying it “knew of only one accident similar to Taylors” (Time, September 11, 2000).

Plaintiff’s lawyer Randy Roberts pursued the matter, and a Texas State Court Judge ordered Firestone to hand over any complaints and other lawsuits, as well as depositions, concerning its ATX and Wilderness tires nationwide. In fact, there were more than 1,100 incident reports and 57 lawsuits. Efforts such as this by plaintiff’s lawyers lead to the recall of Firestone tires which had claimed hundreds of lives.

On October 31, 1999, five college students attending the University of Southern California (USC) were returning from the USC vs. Cal-Berkeley football game when the tread on the Firestone ATX tire separated, causing the Ford Explorer to roll over and killing sophomore Cathy Dizon, and injuring the other occupants. On April 28, 2000, plaintiffs lawyer Gary C. Eto, representing the Dizon family and the three other passengers, filed suit in California State Court, alleging that the Firestone tire was defective. Lawsuits such as these, which were filed before the August 2000, recall, were no doubt one of the primary reasons for the recall.

In November, 2000, USA Today reported that between 1989 and 1999, more than 1,100 owners of Firestone ATX tires told the company they had accidents due to the tires. Many involved fatalities. In 1997, Firestone received 202 complaints, and people then began suggesting that Firestone recall the tires. In February, 2001, CBS News subsequently reported that there were at least 174 deaths and more than 700 injuries arising from more than 6,000 complaints due problems with the Firestone tires. (The final number of fatalities exceeded 200).

According to Bloomberg News (September 6, 2000), House of Representative Billy Tauzin (Rep., La.) head of a Congressional Committee investigating the Firestone Tire recall, said that both Ford and Firestone withheld information from U.S safety regulators, and that “We are in the midst of a national tragedy” (Wall Street Journal 09-07-2000). “The hearing is not just about the topic of safety, its about the topic of honesty” said Senator Robert Byrd (Dem.- West Virginia) at the subcommittee hearing (Associated Press, 09-06-2000). “Firestone knew a long time ago that they had a problem and did nothing about it” charged Representative Heather Wilson (Republican, New Mexico). Tauzin also queried -Why did we have to wait for so many people to die on the highway before someone paid attention to the problem? Representative Fred Upton (Republican, New Mexico) accused the National Highway Traffic Safety Administration (NHTSA) of being “asleep at the wheel when it was served up on silver platter” (Wall Street Journal 09-07-2000).

The Firestone Tire debacle reflects the deception and unwillingness of big business to police itself, as well as the total ineffectiveness of government regulation in the product liability-automobile safety arena.

Plaintiff’s lawsuits help make the world a safer place by creating incentives to manufacturers to take unsafe products off of the market and by encouraging them to build better products and vehicles. The Firestone tire recall is simply one example.

The Truth About “Tort Reform”

Those who argue for tort reform seek to limit the rights and protections our Constitution provides to those who are injured from defective products, toxic chemicals, medical malpractice, etc. “Tort reformists” seek to limit and eliminate the injured person’s right to civil redress in the courts, and in so doing, seek to challenge the independence of our nation’s individualized system of justice and democracy. The free market economy, the longstanding symbol of American freedoms, is what “tort reformists” are actually challenging.

A free market economy rewards businesses which manufacture the best and safest products, and penalizes companies that produce unsafe and inefficient products. In a true ‘free market’ economy, the general public, the consumers constitute the ‘market,’ and the consumers, not politicians or the government, decide whether the company wins or loses. The American jury system epitomizes our democracy by allowing common citizens to decide winners and losers. Common citizens, unlike legislators and judges, are typically not influenced by big business, because they do not run for office, do seek political appointment, and do not ask for campaign contributions. Because we have a Constitutional right to a jury, the position of ‘juror’ has been described as the only constitutional office available to all members of society that is virtually free from political influence, bribery and intimidation.

Consequently, big corporations have waged an unwarranted attack on the jury system, engaging in an ongoing publicity campaign to outright misrepresent and distort the truth about cases and jury verdicts, in order to influence the public into voting away their constitutional rights, under the guise of “tort reform.” The infamous spilled coffee case and the phrase “too many frivolous lawsuits” are two such examples.

The McDonalds “Spilled” Coffee Case

More than a decade after 79 year old Stella Liebeck suffered third degree burns from a cup of coffee admittedly unsafe for human consumption, advocates of tort reform and critics of our jury system continue to distort the truth of that case, calling it “frivolous” and an “outrage” and frequently cite it in support of their attack on trial lawyers. The spilled coffee case has been twisted and spun to support the mantra of tort reform – that America needs to revamp its civil justice system and do away with our fundamental Constitutional Rights. But what are the true facts of that case?

In 1992, Stella Liebeck bought a 49 cent cup of coffee at the McDonalds drive through window in Albuquerque, New Mexico. Ms. Liebeck’s grandson was driving. The coffee was served in a styrofoam cup, and after the order was received, the grandson pulled forward and brought the vehicle to a stop so his grandmother could add cream and sugar to the coffee. Advocates of tort reform assert that Liebeck was driving and/or that the vehicle was in motion – both assertions are blatantly false. Liebeck placed the cup between her knees and attempted to remove the lid from the cup, and in the process, the coffee spilled onto her lap. She was wearing sweatpants which absorbed and retained the scalding hot liquid against her skin. She sustained third degree burns over 6 percent of her body, including her thighs, perinium, buttocks, genital and groin areas. Liebman was hospitalized for 8 days and underwent painful skin graft surgery and debridements.

McDonalds rejected the plaintiff’s initial settlement demand of $20,000 and offered Liebman a meager $800 to resolve the case. Days before trial, the judge recommended that McDonalds settle for $225,000 – a recommendation that McDonalds ignored.

In 1994, the case proceeded to trial – the evidence revealed:

  • McDonalds had received more than 700 prior claims from other customers that had been burned by McDonalds coffee, many who also received third degree burns.
  • McDonalds Quality Assurance manager testified that a burn hazard exists with any food substance served at 140 degrees or above
  • McDonalds kept its coffee between 180 and 190 degrees to maintain optimum taste, a requirement actively enforced by the company
  • At 180 degrees, any liquid will cause third degree burns within 2-7 seconds
  • Other business establishments serve their coffee generally at 135 to 140 degrees
  • As the temperature decreases toward 155 degrees, the extent of the burn decrease exponentially, and that if Liebeck’s burn occurred at 155 degrees the liquid would have cooled and given her time to avoid a serious burn injury
  • McDonalds admitted at trial that at the temperature it served its coffee, the beverage was not fit for human consumption because it would burn the mouth and throat
  • McDonalds stated at trial it had no intention of reducing the temperature of its coffee in spite of the admitted burn hazard – they were “aware of this risk … and had no plans to turn down the heat”
  • McDonalds executive testified that although they knew their coffee caused serious burns, the company had decided not to warn customers about the possibility of severe burns
  • An expert for McDonalds testified that the number of hot coffee burns were statistically insignificant compared to the billions of cups of coffee McDonalds sells

The jury awarded Stella Liebeck $200,000 in compensatory damages, and this amount was reduced to $160,000 because the jury found her 20% at fault for her burns. The jury also awarded $2.7 million in punitive damages, which equaled approximately two days of McDonalds coffee sales. The Court reduced the punitive damage award to $480,000, even though the judge described McDonalds’ conduct as reckless, callous and willful.

The parties eventually entered into confidential or ‘secret’ settlement which was never revealed to the public. (In other words, in spite of the enormous publicity generated by this case, the defendant did not want the public to know the truth about the conclusion of what is now referred to by leaders of the tort reform movement as its “poster child” case).

Epilogue

After the trial, the McDonalds in Albuquerque had reduced the temperature of its coffee to 158 degrees. Was this merely a coincidence, or did the lawsuit result in ‘safer’ coffee?

Trial lawyers and jurors are the last line of defense against corporations knowingly placing dangerous products into the stream of commerce.

There is No Proliferation of ‘Frivolous Lawsuits’

Advocates of “tort reform” redundantly use the phrase “too many frivolous lawsuits” and refer to a “litigation explosion” in their efforts to disparage plaintiffs lawyers and eviscerate our constitutional rights. Nothing could be further from the truth.

  • Since 1993, personal injury lawsuits (tort claims) have declined by 5% according to the National Center for State Courts
  • The number of civil trials has declined by 47%, according to the Department of Justice. The decrease is reflected across specific types of cases as follows: automobile cases are reduced by 15%, premises liability (slip and fall) by 52%, medical malpractice is down by 14%, and products liability down by 76%
  • The median jury award declined from $65,000 in 1992 to $37,000 in 2001

In essence, there is no litigation explosion, nor has there been a proliferation of lawsuits, let alone frivolous lawsuits.

Brief History of Our Fundamental Rights

Thomas Jefferson, principal author of the Declaration of Independence, and third President of our country, had this to say about our constitutional right to a jury trial:

“But there are certain principles in which all agree, and which all cherish as vitally essential to the protection of the life, liberty , property, and safety of the citizen: …. Trial by jury, the best of all safeguards for the person, the property, and the fame of every individual…” -Thomas Jefferson

“By a declaration of rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases,…” –Thomas Jefferson to Alexander Donald, 1788.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson

Contrast these statements to that of the leader of Nazi Germany, Adolph Hitler, who said “I shall not rest until every German sees that it is a shameful thing to be a lawyer.” Sound familar? – Like tort reformists with their incessant lawyer bashing?

Do not let tort reformists, big business and corporations attack our fundamental rights by misleading accounts of jury trials and its propaganda war on individual rights. Thomas Jefferson also said: “I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.“

So whose side do you line up on, Thomas Jefferson’s, or Adolph Hitler’s? The common citizen’s or big business’? Protect our Constitutional rights by opposing tort reform.

Lawsuits Do Make Safer Vehicles!

On June 3, 2013, the United States Department of Transportation, National Highway Traffic Safety Administration (NHTSA) asked Chrysler to recall 2.7 million Jeeps for fire concerns. NHTSA sent Chrysler a letter asking it to recall the 1993-2004 Jeep Grand Cherokee and 2002-07 Jeep Liberty. NHTSA says fires caused by gasoline leaking from punctured gas tanks in rear-end crashes have killed 51 people.

Unfortunately for the American public, Chrysler is refusing to recall these vehicles and steadfastly insists its vehicles are safe and have met all federal requirements.

The National Highway Traffic Safety Administration’s position is that the location of the gas tank is unsafe. The gas tank should not be placed behind the rear axle.

This is the identical argument Gary Eto successfully made two decades ago in the case, Navarro vs. General Motors, Los Angeles Superior Court Case No. EC015454.

On July 25, 1993, plaintiff Hugo Navarro was a passenger in a 1979 Chevrolet Monte Carlo that was rear ended by a Datsun pickup truck. Seconds after the impact, the rear of the Monte Carlo burst into flames, which rapidly engulfed the entire vehicle.

Mr. Navarro sustained third degree burns all over his body and spent several painful and agonizing months in the burn ward and intensive care unit at Los Angeles County USC Hospital, where he received multiple surgeries including extensive skin grafts. Mr. Navarro suffered permanent injuries, including disfigurement. He retained attorney Gary Eto to represent him. The case went to trial in 1996.

At trial, Mr. Eto contended that the fuel system of the Chevrolet Monte Carlo was defectively and negligently designed because the gas tank was placed in an unsafe location by the manufacturer when they designed and manufactured the vehicle.

The gas tank was located at the rear of the vehicle, directly between the rear bumper and the rear axle, in what was then commonly referred to as the “Crush Zone.” Mr. Eto produced evidence that the automobile industry had long been aware of the dangers of placing the gas tank in the crush zone, including patents revealing alternate and safer locations for fuel tank placement, as well as alternative designs used by various European manufacturers.

Mr. Eto also argued that General Motors should have placed a firewall between the gas tank and the occupant compartment to minimize the spread of gasoline and propagation of flames and fire in the event the fuel tank was compromised. Plaintiffs also argued that the gas tank’s filler neck, should not have been located at the rear of the vehicle, because it would be impacted before the remainder of the fuel system when the vehicle was rear ended. Mr. Eto also maintained that the fuel system’s sending unit was improperly attached to the gas tank, as the sending unit was dislodged during the collision, leaving a huge opening from which the gasoline escaped.

Finally, Gary Eto argued that the defendant General Motors’ crash testing of its vehicles was woefully inadequate and negligent.

Defendant General Motors contended that its vehicle was not defective and that the location of the fuel tank at the rear of the vehicle was safe.

The jury returned a verdict in excess of a million dollars. General Motors appealed the verdict. The California Court of Appeal agreed with the plaintiffs and affirmed the verdict.

At the time of the Navarro vs. General Motors case, (early to mid 1990’s) virtually all American automobile manufacturers in the United States erroneously argued that because Ninety Six percent (96%) of the domestically made vehicles on the road had gas tanks located at the rear of the vehicles, behind the bumper, in the crush zone, that it was a safe design.

Although this was the position articulated by the automobile industry, the then state of the art knowledge and current literature indicated otherwise. As set forth below “A 1993 study of fire related deaths in rear crashes occurring from 1987 to 1989 concluded that the increasing relocation of tanks ahead of the rear axle had a substantial effect on the reduction of these deaths in rear impacts” (Letter from National Highway Traffic Safety Administration to Chrysler dated June 3, 2013).

This letter also states that a survey of vehicle produced in model years 2002-2003 revealed that fewer than six percent (6%) had the gas tank still in the crush zone. How times have changed! Lawsuits do make safer vehicles!