I just saw Hot Coffee, an excellent and disturbing award-winning documentary about the concerted effort by big corporations that, under the banner of ‘tort reform’, seek to deprive people of their right to sue them for the damage they inflict. See the film’s website for more information and for the interview that director Susan Saladoff had with Stephen Colbert, that I also linked to earlier.

Here’s the trailer for the film.

The film takes its title from the famous case in which Stella Liebeck, an elderly woman, sued McDonalds because of the injuries she suffered when she spilled their hot coffee over her legs. A jury awarded her $160,000 in damages and $2.7 million in punitive damages. McDonalds and other big corporations exploited this case to create a vast mythology about ‘jackpot justice’ in which they alleged that people filed frivolous lawsuits against big corporations and doctors in the hope that they would strike it rich, and that the cost of defending against these charges and paying the judgments was passed on to the rest of us. The corporations successfully appealed to the crocodile mentality in people that resents what seems like undeserved good fortune to people who are just like them but in which they do not share, and the case became the punch line for comedians.

The corporations have used that case to steadily encroach on the rights of people by instituting caps on damages, forcing binding arbitration on people so that they cannot sue in court but must have their case decided by an arbitrator who is picked by the very corporation that harmed them, and pouring money into judicial races so that any convictions that people obtain are overturned by higher courts and the laws depriving people of their day in court are ruled constitutional. The film shows how the oligarchy works, creating a pseudo-legal system that is friendly to business and government and conspires against ordinary people.

The documentary starts by exposing the central myths of the hot coffee case, which was that it involved a doddering old woman who spilled coffee on herself while stupidly drinking while driving. In actual fact, Liebeck was an active and robust woman who had just retired a couple of months earlier and was the passenger in the car that was parked in the lot when the event occurred. But what was shocking to me was the scale of the burns suffered by the woman. They were horrendous and required major skin grafts. The photos of the injury were horrifying and I had to turn away. What was worse, McDonalds had received many previous complaints about their hot coffee but had done nothing.

The idea of having some caps on damages seems reasonable to most people because of the perception that juries are emotional idiots who pick some number out of a hat out of excessive sympathy for the victim. The film examines a case in which a child (one of a pair of twins) was born with brain damage because of medical malpractice by a doctor who had had previous problems. The jury award carefully took into account the amount of money the family would need to provide a lifetime of care to their child but this amount was arbitrarily reduced because of the caps laws passed by the state legislature, which means that Medicaid (i.e., taxpayers) will have to foot part of the bill while the doctors and hospitals escape the full consequences.

In the case of the damage caused by binding arbitration, the film looked at the case of a young woman who was gang raped by her fellow Halliburton employees in Iraq and then when she complained was locked in a storage trailer and was released only because her father in the US got their congressman involved. But she could not sue Halliburton for damages because her employment contract had a binding arbitration clause that she was unaware of and she had to fight hard just to get her case heard in court.

The film says that many of the contracts we now enter into, such as with our credit card companies, include such clauses in the fine print, when we originally sign up or in the modifications to our agreements that we get in the mail and which hardly anyone reads. Arbitrators overwhelmingly rule in favor of the companies. It is not hard to see why. The arbitrators are picked and paid by the company and make their living by deciding these cases and those who rule against the companies find that they rarely get asked again. As Upton Sinclair said, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

The film also examines the case of how business interests pour money into electing judges who will be sympathetic to them, in particular waging a relentless campaign to defeat a Mississippi Supreme Court judge who was deemed to be not subservient enough.

The filmmakers interviewed some of the jurors in the hot coffee case and they explained how they weighed the evidence and arrived at their verdict and the size of the judgment. Rather than being stupid people who picked a large number at random, they carefully weighed how much blame should be borne by the woman and how much by McDonalds and what punitive damages would be appropriate to send McDonalds the message that they had acted irresponsibly by cavalierly ignoring the warnings about its product. They settled on two days worth of coffee sales revenue.

I have been called for jury duty several times and although I have never been picked for an actual case, I have spent a lot of time in the jury poolroom talking with my fellow potential jurors. These are just ordinary people from all walks of life and for some of whom it was a real hardship to serve on a jury because they lost wages. But I was impressed at how seriously they took their task and they confirmed my belief that I would much rather put my fate in the hands of a jury of my peers than in those of an arbitrator or judge, however well-educated or experienced they are.