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Have You Been Tricked into Being Anti-Plaintiff?

If someone does something wrong and you’re harmed because of it, should the law require them to do what they can to make it right? Many would say the obvious answer to this question is “yes.” But when it comes to tort law, there’s been fierce pushback on plaintiffs for doing so.

There’s even a chance this pushback, mostly driven by public relation experts, politicians and lobbying firms, has led to you being biased against plaintiffs seeking justice.

Think of the 1992 case in which an elderly New Mexico woman spilled hot McDonald’s coffee on her lap and successfully sued. The woman had third degree burns on 6% of her body and went into shock as a result of the scalding coffee, which health experts say should have been served at a more reasonable temperature. But the case quickly became the butt of jokes on national television and has been held as an example for nearly three decades of how seemingly ​​litigious the nation has become.

The truth is that there have been systems of tort law, which includes personal injury law, in nearly every justice system since the beginning of time. But taking action against such wrongdoing — especially against large corporations hungry for large profit margins — is often seen in a negative light. In addition to the infamous McDonalds case, there are tons of other examples politicians and others have used to make their point that people are opportunistic and greedy, only preying on others and businesses to make money.

“Twisted and abused, tort law has become a pretext for outrageous legal outcomes — outcomes that impede our economic life, not promote it,” President Ronald Raegan remarked in one 1986 speech on the subject.

In the speech, he derided a California man who had sued a telephone company after he was hit by a drunk driver while in a telephone booth. The door of the booth was faulty and stuck so that the man couldn’t escape as the car came barreling toward him. He lost his leg in the incident.

Frivolous or Finding Fairness?

The term “frivolous” has become a powerful buzz word associated with personal injury law.

Was it frivolous to sue McDonald’s for a mistake that led to suffering? You might feel that way if you don’t know all the facts and figures of the case. It was later discovered that nearly 600 other people complained of burns due to the hot coffee, and still the policy to serve 180 degree liquid was not changed to ensure customer safety.

It was also widely reported that the plaintiff sued for more than $3 million. In reality, the plaintiff originally wrote a letter to McDonald’s simply asking that they pay her over $10,000 in hospital bills, and check to see if the coffee machine was faulty. She wasn’t looking to make money — only to not lose money from the experience, and to try to make sure it didn’t happen to someone else. McDonald’s offered her $800 — less than a tenth of her medical bills.

And when it was all said and done, she settled with McDonald’s for less than $600,000 after the company appealed the verdict.

Susan Saladoff, a lawyer who made the documentary “Hot Coffee” about the case, has said that frivolous lawsuits are “a myth.” There are, of course, checks that keep people from seeking exorbitant amounts of money from companies for seemingly no reason. “Judges can throw out frivolous cases and fine people for wasting the court’s resources, a jury deliberates on the right amount of damages to award, judges can reduce the compensation given, and defendants can appeal a ruling,” explains Priceonomics.

There are everyday examples of how tort law becomes applicable to scenarios in your own life. Would it be frivolous to ask a bicycle manufacturer to make right after selling a bike with faulty brakes to somebody who as a result got hurt in a bicycle accident? What about taking legal action to secure enough money to cover medical bills for an accident caused by a driver blatantly running a red light and hitting you?

Both are examples of tort law, which regularly comes under attack, especially when they’re complicated and easy to misunderstand. In a 2015 case, a Connecticut woman was dubbed the “aunt from hell” for suing her nephew after an overenthusiastic hug left the woman with a broken wrist and ultimately disabled.

What didn’t make the headlines is the fact that the woman didn’t want to sue her nephew, “but it was the only way to get her homeowners insurance policy to pay for the cost of her care,” the Washington Post reported after she sued for $127,000. The insurance company only offered her $1 for medical bills that resulted from the injury. “I’m certainly not trying to retire to some villa in the south of France,” she later told CNN, after a jury decided against awarding her the money. “I’m simply trying to pay off my medical bills.”

Particularly in light of the fact that 1 in 10 Americans have medical debt, and that emergency room visits match or exceed the total savings of many people with private insurance, it simply makes sense that when injured by someone else, people want the person at fault for the injury to pay the medical and other costs related to the injury.

Rebuffs and Reform

As a result of misinformed or untruthful analysis, there’s regularly a wave of rhetoric aimed at reforming tort law.

“Restrictions on lawsuits are something people don’t care about until they get hurt and want to sue someone and then discover that they can’t,” writes Stephanie Mencimer, author of “Blocking the Courthouse Door.” The book aims to debunk myths spread by PR firms that, “the nation’s courts (are) flooded with frivolous lawsuits and that therefore they should support efforts to immunize big companies and doctors from liability.”

Mencimer wrote of the McDonald’s case and how it was grossly misinterpreted by the public. It then became the topic of the documentary “Hot Coffee.” Mencimer writes that the movie, accepted into the Sundance Film Festival, succeeded at telling the story of why tort law is important to America.

The filmmaker, Susan Saladoff, uses the case as a basis of how tort reform has essentially been eroding Constitutional protections. Saladoff points out that big corporations directed money to the U.S. Chamber of Commerce (where Reagan gave the speech on tort law in 1986), which then spent the money on election campaigns of people who would support reforms, like caps on damages.

What’s Next for Tort Law?

There’s a whole new frontier of tort law, especially as the world deals with the aftershocks of a global pandemic.

“Tort lawyers, both plaintiff-side and defense attorneys, predict an onslaught of cases,” writes law professor Michael Krauss. “Some of these cases will be non-controversial applications of Tort doctrine to the new circumstances created by COVID-19. Other cases will push the boundaries of Tort law, which requires for liability the triad of wrongdoing, causation, and damages.”

We’ve already seen some of this emerge as companies have been sued after customers have been put at risk of catching COVID-19, but Krauss points out that there have been less conventional suits emerging too, like when a business is shut down due to government regulations.

The American Bar Association says “legislatively created immunity is already a reality in the COVID-19 healthcare environment,” another aspect of tort law.

“The pandemic has created an unprecedented minefield for potential medical malpractice liability, given the lack of any uniformly recognized protocol for treating the disease and the absence of a prevailing standard of care against which a practitioner’s actions can be fairly and reliably measured.”

Bicycle Accidents and Tort Law

If you’re in a bicycle accident that was caused by someone else — whether its a driver turning into you, a person opening their door directly into your path, or a road hazard caused by someone’s negligence — a personal injury law suit will be based on tort law.

In our work as bicycle accident lawyers — even in the relatively liberal San Francisco Bay Area — we still see anti-plaintiff attitudes harm our clients. Our clients often have done nothing wrong, or at the very least are not primarily at fault for the bicycle crash, and yet are left with life-altering injuries and tens of thousands of dollars or more of medical debt, even with health insurance. Some will never be able to work again. Some lose relationships or have to give up their favorite hobbies because of the changes caused by their injuries. Money doesn’t make them whole, but it is the only option they have in our legal system for any kind of compensation.