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Vail Valley Voices: One size doesn’t fit all

KEITH SPERO
Vail, CO Colorado

The subject of tort reform is riddled with misun-derstanding about various aspects of our tort sys-tem as well as with false allegations and half-truths that mislead the public.

Included in these are the inaccurate reporting of large jury verdicts in the public press, the subject of punitive damages and the true purpose of tort reform so far as its chief sponsor, the insurance industry, is concerned. It is in the industry’s inter-ests to maximize the perception of dangers to be insured against and to minimize future jury verdicts and settlements.

Tort reform and the ‘ legitimate’ plaintiff



A recent writer to the Vail Daily said that tort reform is “not intended to place roadblocks an injured person has to overcome.” Unfortunately, it is so intended by the insurance industry and usually achieves that result. It was further stated that “legitimate plaintiffs should continue to recover just and equitable compensation for their docu-mented and proven injuries and illnesses.”

That is precisely what the tort system is designed to do. Justice is a system, not a result. No system is perfect, but ours is better than any other that has yet been devised. You may not like a result in a par-ticular case, but that does not mean you should scrap the system.



Sometimes, you only think you do not like the result because you do not know all the facts. You do not know “the rest of the story,” as Paul Harvey used to say. Due to an unrelenting misinformation campaign, when a big jury verdict does occur, it is often publicized in a manner to make it seem ridiculous so that you will read the article and hopefully be inflamed. The “absurd and outra-geous McDonald’s hot- coffee suit” cited by a recent letter writer is a prime example.

The general public did not hear all the facts that the jury heard. Many people think that a lady spilled hot coffee on herself, got burned and was awarded millions. The jury heard about a corpo-rate policy that the second cup of coffee was free but all coffee was to be served scalding hot. That way, people were unlikely to finish the first cup and a second cup was seldom served.

People all over the country began to get burned, and many suits were filed, most of which McDon-ald’s settled for modest amounts of money. The scalding coffee burned skin off the hands and arms of many people, but the corporate policy was not changed.



The case that finally got their attention involved the drive-through pickup window. A lady bought a cup of coffee, and some of it spilled into her lap, burning off her slacks, her underwear and the skin on her private parts, necessitating surgeries and hospitalization and accompanied by excruciating pain and suffering.

There are very few punitive-damage cases in this country every year, but this was one of them. In order to be allowed to ask the jury for punitive damages, the plaintiff must not only prove the defendant was negligent but also that the defen-dant callously acted in a way that it knew presented a high probability of substantial harm but acted that way anyway.

In this case, the jury concluded that not only was McDonald’s negligent but that considering the corporate policy, the previous claims and lawsuits, the many injuries and the defendant’s intransigence, this was a case where punitive damages were appropriate. The jury first decided upon an appropriate amount of damages to com-pensate for the pain and suffering, lost wages, medical bills, future disability and inability to enjoy life.

Once the compensatory-damages verdict was decided, the jury was permitted to consider puni-tive damages as a separate award. The purpose of punitive damages is to punish the offending party and to deter such conduct by that defendant and others in the future. Only money can be used – no violence.

The amount of money damages needed to pun-ish a rich man is much more than the amount needed to punish a pauper. Ten dollars awarded against a pauper may mean he may not eat that day. Ten thousand dollars awarded against a large corporation may not even get their attention.

Evidence of the defendant’s wealth is not allowed to be introduced into evidence unless and until the jury decides that punitive damages are appropriate and the judge agrees. In this case, evi-dence of McDonalds’ profits for an average week was presented to show how rich the corporation was, and the jury award-ed a large amount intended to send it a message, to punish it and to deter such conduct in the future. Subse-quently, the courts reduced the amount of punitive damages McDon-ald’s had to pay, but scalding-hot cof-fee sufficient to burn off clothes and skin is no longer served.

Outrageous claims, crooked lawyers and class actions

Engaging in any type of protracted litigation is like fighting a war and is no place for the timid. Sometimes there are abuses on both sides as some get carried away in the fight. But unlike most state medical associa-tions in the past, most bar associa-tions discipline attorneys for viola-tions of the canons of ethics, includ-ing suspension and disbarment. Crooked lawyers who bribe judges are the exception rather than the rule, and to tar the entire tort bar with the same brush is extreme bias and sim-ply lawyer bashing.

I agree with criticisms of certain practices of lawyers in class- action cases, including the ones enumerated in a recent letter, but class- action reform is different from and a sepa-rate subject from tort reform and beyond the scope of this column.

Tort reform should not punish the innocent for the benefit of insurance companies. A cap on jury verdicts is no substitute for a reasoned determina-tion of what is appropriate in a partic-ular case. One size does not fit all. This is especially true when one considers that a trial court judge has the power to reduce the size of a jury verdict when he or she thinks it warranted as can the appellate courts. There are adequate safeguards already in place. If they are not activated in a particular case, per-haps there is more to the story than was reported in the papers.

When Bill Frist was Senate majority leader, he tried to cap jury verdicts in medical malpractice cases at $ 250,000. Ask yourself if you think that would be fair if you or your loved one were the plaintiff and the injury were quadriplegia.

Keith Spero lives in Edwards. This col-umn is the second of two parts.


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