Today's post is from Jay M. Feinman, Distinguised Professor of Law at Rutgers School of Law. He is an authority on contract law, tort law, and legal education, and is the author of Un-Making Law: The Conservative Campaign to Roll Back the Common Law.
If most Americans know about any single piece of litigation, it is likely not to be Marbury v. Madison, which established the Supreme Court’s power of constitutional judicial review, or the civil rights landmark of Brown v. Board of Education. Instead, it involves the more ordinary circumstances of Stella Liebeck, the 79 year old victim of a coffee spill at a McDonald’s drive-thru. The story became a staple of attacks on the civil justice system as an example of frivolous litigation, runaway juries, and activist judges who were denying personal responsibility and threatening American business.
As I describe in Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Beacon, 2004), the facts are different than the legend. Liebeck suffered third-degree burns that required skin grafts and a week of hospitalization because McDonald’s served its coffee thirty degrees hotter than its competitors, too hot to drink but hot enough to burn. Prior to Liebeck’s case, McDonald’s had received over 700 complaints about the temperature. Even then, the jury reduced Liebeck’s compensatory damages by twenty percent because she was partly at fault, and the judge cut the jury’s punitive damage award from $2.7 million (the jury’s estimate of how much McDonald’s made from two days’ coffee sales) to $480,000.
Liebeck’s story has been retold in a documentary film, Hot Coffee, that premiered at film festivals and on HBO this year and is now available on DVD. Susan Saladoff, a successful Oregon trial lawyer, gave up her law practice and devoted two years to making the film. Hot Coffee graphically portrays Liebeck’s story, showing her as an ordinary senior citizen, not a greedy plaintiff, and shows in grisly detail the effects of her burns.
The film also gives a broader picture of corporate America’s attempt to transform the civil justice system. For example, it presents the story of Oliver Diaz, Mississippi Supreme Court Justice who was opposed by the U.S. Chamber of Commerce in a heavily financed smear campaign that was fictionalized in John Grisham’s novel The Appeal. It attacks mandatory arbitration clauses through which workers and consumers are denied access to the courts, using the story of Jamie Leigh Jones, a Halliburton employee in Iraq whose allegations of gang rape were blocked from litigation by her employment contract.
Hot Coffee and Un-Making Law tell related versions of the same story. My book describes the conservative transformation of tort, contract, and property law in historical perspective and great detail. As a visual medium, the film is visceral. And both end with a call to action that is echoed in the Occupy Wall Street movement—it’s time to reclaim law as a progressive force for the benefit of ordinary people.