MISLEADING ANECDOTES ABOUT LAWSUITS

“Unfortunately, much of the debate on the civil justice system relies on anecdotes and atrocity stories and unverified assertion rather than analysis of reliable data.”1

Marc Galanter, John and Rylla Bosshard Professor of Law and Professor of South Asian Studies, University of Wisconsin Law School

• “Tort reformers” use exaggerated or fabricated anecdotes to drive their message. As described by professors William Haltom and Michael McCann in their 2004 book Distorting the Law; Politics, Media and the Litigation Crisis,2 tort reformers typically point to some extraordinary occurrence – some exaggerated or fabricated “horror story” – to symbolize what they want to call “ordinary” about the tort system. The outcomes of these cases are told in a way to violate notions of common sense, and to demonstrate injustices and inefficiencies of the tort system, which is said to be of great cost and peril to individual responsibility, economic efficiency, and reason.

• Anecdotes are usually highly misleading or wrong.
  • Stella Awards. An egregious example of this is a list of six crazy “real lawsuits” circulating around the Internet since May 2001, all of which are entirely made up. According to Snopes.com, a website that debunks urban legends, “All of the entries in the list are fabrications – a search for news stories about each of these cases failed to turn up anything, as did a search for each law case.” 3 In 2003, Washington Post media columnist Howard Kurtz reported on confronting U.S. News & World Report owner Mort Zuckerman about referencing these fictitious cases. “Great stuff,” said Kurtz after describing two of the crazy lawsuits cited by Zuckerman. “Unfortunately for Zuckerman, totally bogus. Two Web sites -- StellaAwards.com and Snopes.com -- say the cases … are fabricated, and no public records could be found for them. Zuckerman has plenty of company. A number of newspapers and columnists have touted the phantom cases since they surfaced in 2001 in a Canadian newspaper.”4
  • Newsweek Cover Story. On December 15, 2003, Newsweek ran a cover story called “Lawsuit Hell,” a data-starved article based almost entirely on misreported or incompletely described anecdotes. The media watchdog organization, Fairness & Accuracy in Reporting, severely attacked the story in the March/April 2004 issue of its magazine, Extra!, in a story called, “Trial by Anecdote; Newsweek’s ‘lawsuit explosion’ blown away by facts.” Author Neil deMause wrote that the story was “based on faulty assumptions and outright misstatements.” The Washington Monthly magazine also severely attacked the article’s accuracy.5
  • Years of misrepresentations.
    • In 1986, consumer groups brought several victims to testify before Congress in an attempt to clear the record regarding their cases. One was Charles Bigbee, whose case was repeatedly distorted in public speeches by President Reagan, on national television by insurance industry executives, and on editorial pages of papers like the Wall Street Journal. Bigbee testified, “I believe it would be very helpful if I could talk briefly about my case and show how it has been distorted not only by the President, but by the media as well. That is probably the best way to show that people who are injured due to the fault of others should be justly compensated for the damages they have to live with the rest of their lives”6
    • Professors Haltom and McCann illustrate many additional examples in their 2004 book Distorting the Law; Politics, Media and the Litigation Crisis7 as have the New York Times8 and Los Angeles Times9 in extensive articles.

• McDonald’s Coffee case. The facts of this widely misreported and misunderstood case are as follows10: 79-year-old Stella Liebeck was sitting in the passenger seat of her grandson’s car having purchased a cup of McDonald’s coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid, but the cup tipped over, pouring scalding hot coffee onto her. She suffered third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring and disability for more than two years. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000 to cover her medical expenses, but the company refused. At trial, the jury learned, among other things, that:
  • McDonald’s sold its coffee at 180 Fº to 190 Fº, higher than the industry norm, which if spilled, caused third-degree burns in two to seven seconds, burns that do not heal without extensive treatments which cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability for many months or years;
  • For more than 10 years, McDonald’s knew about the risk of serious burns from its scalding hot coffee – with more than 700 people, including children and infants being burned from 1982 to 1992 – a risk leading experts found unacceptable; and
  • The company never warned customers about the risk of serious burns from spilled coffee served at McDonald's required temperature, could offer no explanation as to why it did not and had no plans to lower the coffee’s temperature when sold.

The jury awarded Liebeck $200,000 in compensatory damages – reduced to $160,000 because the jury found her 20 percent at fault – and $2.7 million in punitive damages for McDonald’s indifference. The trial judge subsequently reduced the punitive damages to $480,000 and refused to grant a new trial in the case, calling McDonald’s behavior “callous.” The parties ultimately settled for an undisclosed amount.

Professors Michael McCann and William Haltom “found in a study that the large McDonald's verdict got extensive front-page coverage in 1994. But only about half the newspapers carried articles when the judge later reduced the punitive damages to $480,000.”11

January 2007

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