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Monday, November 19, 2007 - 16:50:22

Tort Reform and McDonald's Coffee

I'm sure everyone remembers the story years ago that a woman spilled a cup of McDonald's coffee on herself which burned her. She sued and at first won a few million dollars. The tort reform lobby used this as their poster case for reducing "frivolous" lawsuits.

Who isn't against frivolous lawsuits? I don't think you could find one attorney who is for frivolous lawsuits. In facts, long before tort reform became a national issue, filing a frivolous lawsuit was unethical and could subject a lawyer to sanctions. What is frivolous anyway? Of course, like many legal concepts it is in the eye of the beholder, who happens to be the judge deciding the case. Frivolous means 
1. characterized by lack of seriousness or sense: frivolous conduct.
2. self-indulgently carefree; unconcerned about or lacking any serious purpose.
3. (of a person) given to trifling or undue levity: a frivolous, empty-headed person.
4. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion.

So was the lawsuit by the woman who burned herself ( it's not like a McDonalds employee threw it on her) frivolous ?    I never thought it was which tends to shock non-lawyers. But the fact are complicated.

friv·o·lous      [friv-uh-luhs] Pronunciation Key - Show IPA Pronunciation –adjective
1. characterized by lack of seriousness or sense: frivolous conduct.
2. self-indulgently carefree; unconcerned about or lacking any serious purpose.
3. (of a person) given to trifling or undue levity: a frivolous, empty-headed person.
4. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion.

Looking at a Wall Street Journal article, the facts are fascinating. Some things that stand out - at 180 degrees coffee can cause severe burns in 2-3 seconds.    The plaintiff had to have skin grafts and was hospitalized eight days.  The plaintiff offered to settle the entire case for $20,000 at first.  McDonalds said no.   Who was being frivolous by taking this to trial then?    The problem with frivolous suits is who gets to decide what is frivolous.  We trust a jury of 12 to execute people -- then why can't we trust a jury to decide if a corporation has done an individual wrong and should be punished with punitive damages?   Of course there are counter-arguments, but this one case is a great example in my opinion of how the legal system gets it right even though the outcome seems bazaar.


Nearly ten years later, critics of civil justice and juries continue to mock Stella Liebeck and the McDonald's coffee case, calling it 'frivolous' and 'laughable'. However, it was McDonald's own testimony and actions that led a jury to rule against it. And Stella's injuries–which included 3rd degree burns across her groin, inner thighs, and buttocks–were no laughing matter.

Facts About the Case
* Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonald's coffee in February 1992. Liebeck ordered coffee that was served in a Styrofoam cup at the drive-through window of a local McDonald's.
* Critics of civil justice often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true. After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As Liebeck removed the lid, the entire contents of the cup spilled into her lap.
* The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. 

Stella Liebeck's Injury and Hospitalization

* A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body.
* Liebeck suffered burns on her inner thighs, perineum, buttocks, and genital and groin areas.
* She was hospitalized for eight days, during which time she underwent skin grafting and debridement treatments (the surgical removal of tissue).

Stella Liebeck's Initial Claim

* Liebeck sought to settle her claim for $20,000, but McDonald's refused. 

McDonald's Attitude

*  During discovery, McDonald's 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 McDonald's knowledge about the extent and nature of this hazard.
* McDonald's also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste.
  o  Other establishments sell coffee at substantially lower temperatures than at McDonald's.
  Coffee served at home is generally 135 to 140 degrees

Damaging Testimony

* McDonald's own quality assurance manager testified that a burn hazard exists with any food substance served at 140 degrees or above and that McDonald's coffee was not fit for consumption because it would burn the mouth and throat.
* The quality assurance manager further testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that while burns would occur, McDonald's had no intention of reducing the "holding temperature" of its coffee.
* Plaintiff's expert, a scholar in thermodynamics as 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.
* McDonald's 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.
* McDonald's 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.


According to The Wall Street Journal

A Jury of One's Peers

* The Wall Street Journal wrote (September 1, 1994), "The testimony of Mr. [Christopher] Appleton, the McDonald's executive, didn't help the company, jurors said later. He testified that McDonald's knew its coffee sometimes caused serious burns, but hadn't consulted burn experts about it. He also testified that McDonald's had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible. Finally, he testified that McDonald's didn't intend to change any of its coffee policies or procedures, saying, 'There are more serious dangers in restaurants.' "
* The Journal quoted one juror, Jack Elliott, remarking after the trial that the case had been about such "callous disregard for the safety of the people."
* The Journal story continued, "Next for the defense came P. Robert Knaff, a human-factors engineer who earned $15,000 in fees from the case and who, several jurors said later, didn't help McDonald's either. Dr. Knaff told the jury that hot-coffee burns were statistically insignificant when compared to the billion cups of coffee McDonald's sells annually. To jurors, Dr. Knaff seemed to be saying that the graphic photos they had seen of Mrs. Liebeck's burns didn't matter because they were rare. 'There was a person behind every number and I don't think the corporation was attaching enough importance to that,' says juror Betty Farnham."
* At the beginning of the trial, jury foreman Jerry Goens told the Journal, he "wasn't convinced as to why I needed to be there to settle a coffee spill."
*
By the end of the trial, Betty Farnham told the Journal, "The facts were so overwhelmingly against the company. They were not taking care of their customers."

The Verdict

* The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.
* Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonald's had dropped to 158 degrees Fahrenheit.
* The trial court subsequently reduced the punitive award to $480,000—or three times compensatory damages—even though the judge called McDonald's conduct reckless, callous and willful. Subsequent to remittitur, the parties entered a post-verdict settlement.

Thursday, November 15, 2007 - 13:13:54

It's the little things that tic me off

Darth Vader himself, Dick Cheney is coming to town. If I wanted to pay $250, I could go see him.   I'd like to see him.  He scares me but I would still like to see him.   I'd even pay $2.50 or so.  Just as long as he doesn't force-choke me.

Dennis Milligan was asked by NPR this week why the press would not be allowed in the meeting with our vice-president. I wish I could quote him exactly but it was something to the extent off "We want a quiet meeting free of distractions."    I think the interiewer was Ron Breeding who shot back, "So you think the press will cause a distraction?"  Of course, Milligan had some lame response about wanting to talk freely. 

I'm not saying a president or vice-president can't come in town on a publicly funded jet so that he can help raise money for the few people he can find willing to be seen in public with him. I'm sure some democrat will do that too - I don't like it but won't condemn it. 

What irritates me is Milligan's unwillingness to just say the truth:   we don't want the press her so they can't ask annoying questions like "is waterboarding torture" or "how is your former Chief of Staff Scooter Libby doing?"  

The RPA also needs to help Milligan with his speaking skills - or maybe he should just take the Cheney route - don't talk to the press at all.

Wednesday, November 14, 2007 - 16:35:12

Huckabee shows his inner bat-shit is nuts according to Rolling Stone

Matt Taibbi on Mike Huckabee, Our Favorite Right-Wing Nut Job

 

Matt TaibbiPosted Nov 14, 2007 8:40 AM

 

MIKE HUCKABEE, THE LATEST IT GIRL OF THE Republican presidential race, tells a hell of a story. Let your guard down anywhere near the former Arkansas governor and he'll pod you, Body Snatchers-style — you'll wake up drooling, your brain gone, riding a back seat on the bandwagon that suddenly has him charging toward the lead in the GOP race.

It almost happened to me a few months ago at a fund-raiser in Great Falls, Virginia. I'd come to get my first up-close glimpse of the man Arkansans call Huck, about whom I knew very little — beyond the fact that he was far behind in the polls and was said to be very religious. In an impromptu address to a small crowd, Huckabee muttered some stay-the-course nonsense about Iraq and then, when he was finished, sought me out, apparently having been briefed beforehand that Rolling Stone was in the house.

"I'm glad you're here," he told me. "I finally get to tell someone who cares about Keith Richards."

Before I could respond, Huckabee plowed into a long and very entertaining story — one that included a surprisingly dead-on Pirates of the Caribbean-esque impersonation — about how Richards and Ron Wood got pulled over for reckless driving while on tour in Fordyce, Arkansas, a million and a half years ago, in 1975. Richards ended up getting a misdemeanor conviction — an injustice that stood for thirty-one years, until Huckabee, a would-be rock musician himself, stepped in and pardoned Richards last year.

"It's a long process, pardoning," Huckabee said, placing a hand on my shoulder. "It takes a lot of paperwork. And the funny thing is, people said to me afterwards, 'Governor, you'll do that for Keith Richards, but you wouldn't do that for an ordinary person.' And my answer to that is always, 'Hey, if you can play guitar like Keith Richards, I'll consider pardoning you, too.'?"

Huckabee, who in recent years has lost 100 pounds, has the roundish, half-deflated physique of an ex-fatty. With his button nose and never-waning smile, he looks slightly unreal, like an oversize Muppet. I was so taken aback by his appearance that I checked his hands to make sure they had the right number of fingers. After the Richards tale, he went on to tell me about the band he plays bass for, and how he has jammed with the likes of Percy Sledge and Grand Funk Railroad, and how he prefers John Entwistle to Flea's slap-and-pop style of bass-playing. Ten minutes later, driving away from the fund-raiser, I caught myself thinking: Hey, this guy doesn't seem like a total dickhead. I can almost see him as president. . . .

Then I woke up and did some homework that changed my mind. But I confess: It took a little while. Huckabee is that good.

Ever since Huckabee turned in a dominating performance at a summit of Christian voters in Washington a few weeks ago, he has been riding a surge among likely Iowa voters (he's now second to Mitt Romney, and gaining). The media, like me, have been charmed by their initial impression: "It's hard not to like Mike Huckabee," gushed Newsweek. Even The Nation said he has "real charm."

But all the attention on his salesmanship skills obscures the real significance of his rise within the Republican Party. Mike Huckabee represents something that is either tremendously encouraging or deeply disturbing, depending on your point of view: a marriage of Christian fundamentalism with economic populism. Rather than employing the ­patented Bush-Rove tactic of using abortion and gay rights to hoodwink low-­income Christians into supporting patrician, pro-corporate policies, Huckabee is a bigger-government Republican who emphasizes prison reform and poverty relief. In the world of GOP politics, he represents something entirely new — a cross between John Edwards and Jerry Falwell, an ordained Southern Baptist preacher who actually seems to give a shit about the working poor.

But Huckabee is also something else: full-blown nuts, a Christian goofball of the highest order. He believes the Earth may be only 6,000 years old, angrily rejects the evidence that human beings evolved from "primates" and thinks America wouldn't need so much Mexican labor if we allowed every aborted ­fetus to grow up and enter the workforce. To top it off, Huckabee also left behind a record of ethical missteps in the swamp of ­Arkansas politics that make White­water seem like a jaywalking ticket.

All of which begs the question: If this religious zealot's rise represents the end of corporate dominance of the Republican Party, is that a good thing? Or is the real thing even worse than the fraud?

ON OCTOBER 30TH, FRESH OFF NEW POLLS showing him gaining ground all over the country, Huckabee holds an informal round-table luncheon with reporters at a posh restaurant on the Hill called the Monocle. This is the aristocrat political press, the esteemed Washington bureau reps of the big dailies and the newsweeklies, all white and mostly all in suits and silk ties. It's something of a coming-out party for Huckabee, who has put this thing together to give the Beltway big dogs a sniff of his surging newcomer ass.

The luncheon starts out friendly, with reporters tossing Huck softballs about his newfound momentum and his suddenly beefed-up war chest. But once they run out of bullshit horse-race questions, they start in on him about his credentials as a right-winger. One reporter asks how his support of the "fair tax" (an alternative to the flat tax that some conservatives believe is skewed in favor of low-income Americans) qualifies as conservative; two others badger him about raising taxes to build roads in Arkansas; and a third, remarkably, asks Huckabee if it's proper for a conservative to even talk about poverty on the campaign trail.

What the press doesn't understand is that Huckabee has changed the equation of party-specific orthodoxies. A generation of GOP candidates have used the poor as a whipping-post stage prop, complaining about lazy, frantically copulating homeless fiends living in cars, fucking up the property values of Decent Folk. Huck turns that rhetoric around by saying, "We shouldn't allow a child to live under a bridge or in the back seat of a car." It's a brilliant innovation for a candidate like Huckabee, who recognizes that the only thing he has to lose by talking about poverty and high CEO salaries is the support of the big-money wing of his party — something he doesn't have anyway.

Choosing that strategy also allows Huckabee to do what no evangelical since Jimmy Carter has, which is talk about his faith in terms of sympathy for the underprivileged. "You can't just say 'respect life' exclusively in the gestation period," he says. Huckabee also edges openly into class politics, criticizing his own party for harping on the supposed success of the overall economy. "The reality is, there are many families that ­really are working as hard or harder than they've ever worked in their lives, and they're not seeing that pay off," he says.

For Huckabee, such lines aren't just lip service. As governor of Arkansas, he outraged Republicans with his plan to expand health coverage for children, his embrace of refugees from Katrina and his support for subsidized higher education for the children of illegal immigrants. Worse still, from a Republican standpoint, Huckabee showed little hesitation in raising taxes to pay for such programs — one analysis claims that new taxes initiated during his tenure resulted in a net tax increase of $505 million. Even Max Brantley, editor of the Arkansas Times and one of Huckabee's most ferocious critics, concedes that the candidate's populism isn't an act. "I don't question his sincerity on that," he says of Huckabee, who, like Bill Clinton, grew up in modest circumstances. "He identifies with ordinary people."

Patrician conservatives of the Bush school are alarmed by Huckabee's challenge to traditional Republican thinking. "His record is really one of expanding government and raising taxes," says Pat Toomey, president of the influential Club for Growth. Adds conservative pollster Frank Luntz, "Huckabee has an anti-CEO message that resonates with small-business conservatives. He's the only ­Republican who regularly talks about Wall Street accountability."

While a few Republicans have played with populist rhetoric in the past — Pat Buchanan comes to mind — it's been ages since conservative voters had any viable alternatives to the soak-the-poor elitism of Newt Gingrich and George Bush. But that may be changing. Huckabee's current surge on the national scene mirrors the rise during the 2006 midterm elections of so-called "Blue Dog" Democrats — candidates like Indiana's Brad Ellsworth and North Carolina's Heath Shuler who helped unseat the Republican majority in Congress with a mix of populist economics and religious dogma. "Huckabee's exactly like the Blue Dogs," says Brantley. "They have the same message."

Coupled with his apparent gift for wooing the star-fucking national media class, Huckabee's seizure of political territory long claimed by the corporate right is what makes him so dangerous. Because for all his political waffling in other areas — Huckabee has flip-flopped on a host of earthly political issues, from taxes to local control of school boards — he leaves absolutely no doubt about his commitment to religious wackohood.

George Bush and John Ashcroft were religious in a scary way, but the rational among us could always take heart that, deep down, the Bush administration was more cynical than messianic. But it doesn't take much exposure to Huckabee to see that this former understudy of a Texas televangelist is deadly serious about the God thing. On the trail, Huckabee is most animated when he's talking about religious issues. In the first Republican debate in New Hampshire, Huckabee, apparently unaware that human beings are primates, responded to a question about evolution by saying, "If anybody wants to believe that they are the descendants of a primate, they are certainly welcome to do it."

 

HUCKABEE GAVE AN EVEN MORE DAMNING glimpse into his inner batshit self in a recent appearance at the Preston­wood Baptist Church near Dallas, where he told audiences that Christians are sitting in the pole position of the race to Armageddon. "If you're with Jesus Christ, we know how it turns out in the final moment," he said. "I've read the last chapter in the book, and we do end up winning."

Winning? I ask Huckabee when, exactly, he thinks victory will arrive. "When I was eighteen, I thought I had it pretty well figured out," he says. "I thought the end of the world was coming at any moment." But when I ask how his views have changed, he says only that he is "less adamant now." Huckabee, with the wisdom of age, apparently believes we have at least a day or two left until the end of the world.

The troubling thing about Huckabee's God rhetoric is that a man who is glad that Christians will "win" at Armageddon must be happy about the rest of us losing. When I press him on whether he believes all non-Christians are eternally damned, Huckabee is evasive. "Being president isn't about picking who goes to heaven and who goes to hell," he says. When none other than Bill O'Reilly hammered him on the same point a day later, Huckabee conceded that "I believe Jesus is the way to heaven."

This God stuff isn't just talk with Huck. One of his first acts as governor was to block Medicaid from funding an abortion for a mentally retarded teen­ager who had been raped by her stepfather — an act in direct violation of federal law, which requires states to pay for abortions in cases of rape. "The state didn't fund a single such abortion while Huckabee was governor," says Dr. William Harrison of the Fayetteville Women's Clinic. "Zero."

As president, Huck would support a constitutional amendment banning abortion and would give science a back seat to religion. "Science changes with every generation and with new discoveries, and God doesn't," he says. "So I'll stick with God if the two are in conflict." Huckabee's well-documented ­disdain for science was reflected in the performance of the Arkansas school system when he was governor; one independent survey gave the state an F for its science standards in schools, a grade that among other things reflected Huckabee's hostility toward the teaching of evolution.

Huckabee at most times is gentle and self-deprecating in his public address, but when he talks about religion, he gets weirdly combative and obnoxious, often drifting into outright offensiveness. At one appearance, Huckabee — who's been known to make fart jokes in front of the state legislature — said he would oppose gay marriage "until Moses comes down with two stone tablets from Brokeback Mountain saying he's changed the rules." And he recently scored a rare offend trifecta, simultaneously pissing off immigrants, Jews and the pro-choice crowd when he ludicrously claimed that a "holocaust" of abortions had ­artificially created a demand for Mexican labor.

Huckabee also has a televangelist's knack for getting caught with his fingers in various cookie jars. In his first year as governor, Huck used a $60,000 tax­payer fund for personal expenses like dog food, pantyhose and meals at Taco Bell. (One of his sons — also a very heavy man, as his ­father was — reportedly joked that "there's not a Huckabee alive that can eat at Taco Bell for seven dollars.") The governor also tried to keep $70,000 in furnishings for the governor's mansion supplied by a local cotton grower, and used inaugural funds to pay for clothes for his wife. "Mike is first and foremost about Mike," says Brantley. "He'll nickel-and-dime whoever he can to line his pockets."

Huckabee has also been accused of paying himself as a consultant to his own senatorial campaign, allowing special interests to pay for airline tickets for his daughter, receiving a canoe from a Coke bottler and — hilariously, if you're wont to laugh at the sheer small-town gauche greediness of it all — setting up a "wedding registry" at Target and Dillard's department stores so citizens could lavish the Huckabees with gifts as they renewed their marriage vows. The long list of desired goodies included twenty-four settings of Lenox "Holiday Nouveau" china, a KitchenAid mixer and a "Jack La Lanne power juicer." If you didn't want to pick out something yourself, the Huckabees were glad to take straight cash. "Message from the couple," the registry noted. "Target GiftCards are welcome."

Brantley suggests that a lot of this ­behavior stems from a Southern tradition of ponying up to the local preacher. "If you're the pastor of a church and you've got a guy who owns a men's clothing store, you expect the guy to give you a couple of new suits every year," says Brantley. "But Huckabee continued on like that as governor."

The Arkansans I spoke with about Huckabee invariably describe him as thin-skinned and petty. One evangelical Arkansas Republican who has worked in several GOP campaigns says a family member provided free services to Huckabee just as he had for other preachers, believing that he was helping out someone who was "doing the Lord's work." But the extent of Huckabee's gift-gouging, the man says, was unprecedented: "It's never been understood that that's what you do for politicians."

So far, Huckabee's greedy past hasn't prevented him from surging in the polls. Unlike the rest of the woefully underwhelming field of Republican candidates, Huckabee is a sincere, ideologically in-tune champion of a massive and frustrated conservative demographic. The fact that he is succeeding in spite of his obvious and undisguised lunacy is a testament to the desperation of the voting public, which is so hungry for a candidate who actually responds to its needs that it may be willing to overlook extraordinary levels of kookiness. That might also explain the stubbornly high levels of support for Ron Paul and Dennis Kucinich, who, though comparatively saner than Huckabee, have still been cast as the nutty uncles of the campaign's interminable family drama.

Make no mistake, Huckabee can win this thing. None of his four main rivals — Rudy Giuliani, Mitt Romney, Fred Thompson and John McCain — can claim to represent the Christian right. His biggest problem is money: Apart from a few prominent bundlers culled from the ranks of Arkansas-based Wal-Mart, Huck has largely been ignored by the big-money players in his own party. But even here he is steadily gaining: ­After raising $6,000 a day in the first quarter, he is now racking up $30,000 a day, much of it from small donors. That money could enable Huckabee to compete hard in Iowa, New Hampshire and South Carolina, where his relentless God-humping figures to score big at the polls. "We've got to do well in the early primaries," he says. "If we do, there'll be a total upheaval of the process."

When Huckabee talks like this, he sounds like what he is — the Howard Dean of the Republican Party, an insurgent candidate who shot toward the top by appealing to a disaffected base. But Dean, who ended up stumbling out of Iowa with his balls stuffed in his mouth, learned the hard way that populist campaigns have a way of imploding under the glare of the modern campaign process. Which means: Charm only goes so far if you're full-bore nuts. Huckabee may be able to get away with saying he's not a primate, but he'd better not scream it.

Thursday, November 08, 2007 - 21:09:18

Waterboarding? Is that some new type of surfing?

All of a sudden, nobody knows what waterboarding is.

BushWarBush's big defense of Micheal Mukasey's refusal to say whether waterboarding is or isn't torture is because 'He hasn't been briefed' on waterboarding and therefore can't give an opinion on it.

That excuse seems to be gaining popularity among the GOP.

Giuliani's stance on waterboarding, suddenly, is very similar to that of Mukasey's.

"If you take a simplistic position on it, you're probably irresponsible," Giuliani said. "I should not take a position on waterboarding until I know precisely what we're talking about. If we're talking about what the media says constitutes waterboarding, I have said that I think that's repulsive. But I've also said that I have not been briefed on precisely what we do. I would want to keep an open mind until I heard that."

I also read a story about Gen. Russel Honore the other day, where he said pretty much the same thing.

"I don't know much about it, but I know we're dealing with terrorists who do some very awful things to people," he said after Friday morning's speech to about 900 students at Flat Rock Middle School in Tyrone.

So we're to believe that judges, presidential candidates and Army generals all have no idea what waterboarding is. Either that or they're too fucking scared to go and look it up for themselves.

Don't any of them know how to use the goddamn internet? All the information they need is right here.

MF Adds: We've had a video of a Waterboarding here at Blah3 for a year. It's the #3 hit under "This Is Waterboarding."
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