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The following materials are from Professor Richard Wright's book, and should be read in connection with the McMahon case and the famous McDonald's coffee spill case:

1. The relevant facts. Are there significant differences between Judge Easterbrook's description of the facts put into evidence in the lower court and the lower court's own description? If so, does the difference in description tend to favor one party's side of the dispute? Are there important facts that apparently were not put into evidence, but which should have been?

2. Defendants. What problem did Judge Easterbrook have with the McMahon's theories of liability against the manufacturer of the coffee maker, Bunn-O-Matic, insofar as they were based on "the assumption that Bunn-O-Matic made and sold coffee, as opposed to a tool that retailers use to make coffee"? Was Bunn's failure to challenge this perspective as puzzling as Judge Easterbrook thinks it is? If, as Judge Easterbrook argues, this perspective was legally unsound, why did the Court of Appeals not affirm the lower court's summary judgment then and there? On the other hand, why did the McMahons not include as defendants Mobil Oil Corporation and the owner or operator of the local Mobil minimart?

3 Theories of liability. There is no question that Mrs. McMahon suffered a serious injury. What about Mr. McMahon? Were any injuries caused the result of tortious conduct by Bunn-O-Matic? The McMahons asserted a "product liability" claim against Bunn-O-Matic. Product liability claims are discussed in detail in chapter 11, but in order to discuss the McMahon case we will provide a thumbnail sketch here. In the product liability context, the tortious conduct is the sale of a defective product. Three distinct types of defect, governed by different standards of liability, are recognized: (1) a defect in manufacture or construction, i.e., a "lemon" which, unlike the usual product, fails to conform to the intended design; (2) a defective design; and (3) lack of a proper warning about risks. Which of these types of defect was alleged by the McMahons?

4. Failure to warn. A product liability claim based on lack of a proper warning is governed by the negligence standard: a failure to take reasonable care (to provide a proper warning) in the light of the foreseeable risks involved in the use of the product. There is no need to warn about risks that are known or obvious to the foreseeable users of the product. About what risks do the McMahon's allege that they should have been, but were not, warned? Were those risks ones that the ordinary customer would already be aware of, without any warning? If not, why does Judge Easterbrook affirm the summary judgment against the McMahon's on the failure to warn claim? Did the McMahon's request a warning as scientifically explicit, detailed and complex as Judge Easterbrook assumes would be required? Would it be impossible to devise an adequate warning without all the scientific detail or "medical education" which Judge Easterbrook assumes would be required? Could a reasonable fact-finder (judge or jury) have found that it would have been possible to devise and display an adequate warning? Recall that that is the test for a summary judgment motion.

5. Design defect: consumer expectations ("unreasonably dangerous"). Like many other states, Indiana's product liability law initially was modeled on Restatement 2d § 402A, which imposes liability on one who sells a product "in a defective condition unreasonably dangerous to the user or consumer or to his property." A couple of interpretive problems were created by the juxtaposition of the terms "defective condition" and "unreasonably dangerous" - are they redundant or do they express different requirements? And does "unreasonably dangerous" imply a negligence standard? The Restatement itself defines the terms circularly and redundantly. In comment g it explains that a product is in a defective condition when it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him," while in comment i it states that a product is unreasonably dangerous if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Each formulation states the same "consumer expectations" test, and most jurisdictions interpreted the Restatement language as stating a single (consumer expectations) test for a product defect. Moreover, this test was viewed, as intended by the Restatement, as a strict liability test, not requiring any proof of defendant's negligence.

However, by the time of the McMahon case, Indiana's product liability statute had been modified through additional language which requires proof of defendant's negligence for a design defect. The Indiana courts apparently reconciled this with the prior Restatement-like language, which still remained in the statute, by now distinguishing between "defective condition" and "unreasonably dangerous," retaining the consumer-expectations interpretation of "unreasonably dangerous," interpreting "defective condition" as requiring proof of negligence (for design defects), and requiring proof of both "defective condition" and "unreasonably dangerous" for a design defect. (You might well think that a more natural reading would reverse the definitions of "defective condition" and "unreasonably dangerous." Let this be lesson one on the need to be very careful before attributing ordinary meanings to technical legal terms.)

As Judge Easterbrook notes, some jurisdictions maintain a distinct consumer-expectations test sufficient by itself for establishing a design defect, and an Ohio court let a trial go forward in the Nadel coffee-spill case on the consumer-expectations issue. Judge Easterbrook did not evaluate the facts in McMahon under the "unreasonably dangerous" (consumer expectations) test, since (as discussed in note 7 below) he held that there were insufficient facts in the trial record to permit a finding that the negligence-based "defective condition" requirement was satisfied, and both tests must be satisfied under Indiana law. However, he observed that "[W]hat we have said about warnings leads us to doubt this [consumer expectations] line of argument." Why? Judge Easterbrook dismissed the failure-to-warn claim on the ground that no adequate warning could be devised. What does that argument have to do with the McMahon's argument, under the consumer-expectations test as stated in Indiana law (tracking Restatement 2d § 402A comment i, quoted above), that they were exposed "to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer . . . with the ordinary knowledge about the product's characteristics common to the community of consumers." Recall that Judge Easterbrook, when discussing the failure-to-warn claim, stated: "We may assume that ordinary consumers do not know [that `full thickness third degree burn injuries would require . . . only 3 seconds of exposure at 179 degrees F'] - that, indeed, ordinary consumers do not know what a `full thickness third degree burn' is."

The magistrate judge did assess the consumer-expectations argument. Indeed, reversing the path taken by Judge Easterbrook, he summarily dismissed the design defect claim for failure to satisfy the "unreasonably dangerous" (consumer expectations) test and did not address the "defective condition" (negligence) test. The magistrate judge stated: "The matter of `degree' of injury `is not a matter of a completely different injury.' The focus centers on the relative condition of the product and on the reasonable expectations of the consumer. . . . The danger that spilled hot coffee can burn is `a recognized condition whose potential harm could have been avoided . . . with the correct precautions.' The degree of burns is irrelevant." 1997 U.S. Dist. LEXIS 22318. Do you agree? Judge Easterbrook suggested a similar argument regarding unexpectedly severe injuries, at least when "the consumers understood that the product could cause a serious injury." How serious was the expected injury in the McMahon case? Was the actual injury so much more severe that it could and should be regarded not merely as different in degree but different in kind? Could reasonable jurors have so found? If so, was summary dismissal of this claim improper?

6. Design defect: negligence ("defective"). In addition to or instead of the consumer-expectations test for design defect, many jurisdictions employ a negligence test, which in the product- liability context is often elaborated as a risk-utility balancing test. The relevant utilities (benefits) are those expected by the users of the product, rather than, e.g., those expected by the seller of the product through increased profits or through the local community through more jobs and greater tax revenue. See Restatement 3rd, Products Liability § 2 comment f and illus. 7. Do the "benefits for all coffee drinkers" of being served extremely hot coffee, at least at drive-away locations, so clearly outweigh the unexpected risks of severe burn injuries to some customers that no reasonable juror could decide otherwise (remember, we are considering the appeal of a summary judgment). Is there, as Judge Easterbrook states, insufficient evidence in the trial record for a reasonable juror to decide otherwise (or either way)? If so, the summary judgment is correct, since the plaintiffs bear the burden of producing sufficient evidence to support their claims.

The risks and benefits here, as in almost all cases, are difficult if not impossible to quantify, and arguably should not be quantified. Judge Easterbrook goes outside the trial record (proper?) to discuss the benefits (preferred coffee smell and taste) of serving extremely hot coffee. Is the record silent on the risk or cost side, as Judge Easterbrook states? Is it not clear from the record that the risks are unexpected, extremely painful, severe, permanently skin-destroying burns, likely to occur whenever coffee this hot is spilled on someone in a position where it will remain in contact with the skin, which is most likely when serving coffee to drivers? Should it matter, given the severity and unexpectedness of the risks, if we know, as Judge Easterbrook apparently insists, "whether severe burns from coffee are frequent or rare"? Should (or can) the risk-utility balancing be a pure numerical balancing, in which the moderate sensory pleasures for all or most coffee drinkers justify the (unexpected) maiming of even a very few? Would such maiming be more justifiable if all coffee drinkers were aware of the risk of such severe burns? Or would it be proper for a jury (or a legislature) to decide that, even if all coffee drinkers were aware of the risk, the risk is too severe in light of the moderate sensory benefits?

7. Coffee temperatures. Judge Easterbrook cited the voluntary ANSI standards for brewing, holding and serving coffee. A restaurant industry newspaper, noting that the plaintiff's lawyer in the (in)famous McDonald's coffee-spill case had told the jury that home coffee brewers operate at an average temperature of 135-140 degrees Fahrenheit, reported:

[The] executive director of the Specialty Coffee Association of America . . . is called upon frequently in similar cases . . . . [He] says the McDonald's defense erred by not challenging the figures cited for home coffee brewers, which were incorrect. Standards set by the Association of Home Appliance Manufacturers require brewing temperatures to fall between 170 degrees and 205 degrees Fahrenheit and holding temperatures to be at least 130 degrees. [¶] The coffee industry has even higher standards. . . . They set a minimum water temperature of 195 degrees and a maximum of 205 degrees. To maintain flavor, coffee must be held at 185 degrees to 190 degrees. The temperature drops by as much as 15 degrees when coffee is poured and loses up to 10 degrees when creaming agents are added. . . . [¶] "To be pleasing as a hot beverage, coffee, tea or soup must be served in a range between 155 degrees to 175 degrees," he says. "You have to boil soup to break down the fat, and you must boil [sic] tea and coffee to extract flavor, but, obviously, you don't serve at boiling temperature." [¶] "Home appliance manufacturers," he notes, "would have set higher standards, but doing so would require expensive parts which would have prevented them from being able to sell coffee makers at retail for about $30. So, we in the industry are giving consumers a better cup of coffee than they can make at home."

Mort Hochstein, "Don't get burned: protect yourself against `hot beverage' litigation," Nation's Restaurant News, Apr. 15, 1996, at 33.

The recommended holding and serving temperatures for coffee seem to be based on the assumption that the coffee may cool 25 or more degrees as a result of being poured into a cold cup, mixed with cold cream, and stirred by a cold spoon. This would bring the temperature of the coffee down to 140-160 degrees F or less (depending on the serving temperature) by the time it is ready to be drunk. Judge Easterbrook cited sources indicating that aromatics are released from coffee at 150-160 degrees F. The McMahons' expert, Professer Diller, testified that full-thickness third-degree burns would require 60 seconds of exposure at 140 degrees F (but only 3 seconds at 179 degrees); less serious but still quite painful second and first-degree burns would occur with shorter exposures. To avoid burns to one's lips, mouth and throat, apparently coffee must be drunk (rather than carefully sipped) at temperatures no greater than 135-140 degrees F?

8. Causation. If the McMahons had been able to establish Bunn-O-Matic's tortious conduct, they still would have had to prove that the tortious conduct was an actual and proximate cause of their injuries. This would not have been difficult under either defective-design theory (negligence or consumer expectations). But it might have been difficult under the failure-to-warn theory, since the failure to warn would not be a cause of their injuries if (as is possible and perhaps probable) they would have behaved in exactly the same way and thus suffered the same injuries even if they had been warned about the risk of severe third-degree burns. What arguments could you make on their behalf on this causation issue?

9. Plaintiff's contributory negligence. A plaintiff is contributorily negligent if she fails to behave reasonably in the light of the foreseeable risks to herself and that failure is an actual and proximate cause of her injury. Under modern regimes of comparative responsibility, a plaintiff's contributory negligence will not completely bar her recovery (at least if her responsibility is comparatively less than the defendant's), bur rather will only reduce her recovery in proportion to her comparative responsibility. The defendant bears the burden of alleging and proving the plaintiff's contributory negligence. What did Mrs. McMahon do or fail to do that Bunn-O-Matic could (and should) argue was contributorily negligent? Would Bunn-O-Matic be well advised to argue that she should not have gotten in the car with what she knew was an extremely hot cup of coffee? What else might Bunn-O-Matic argue?

10 Product misuse. As an alternative basis for summarily dismissing the McMahons' claims, the magistrate judge held that the McMahons were barred by "product misuse": "Ordinary consumers who pour hot coffee in a moving vehicle take precautions [e.g., putting a towel or napkin on one's lap] to protect themselves against the potentiality of spilling the hot liquid. Manufacturers are not liable for unforeseeable and unsafe handling of their products." 1997 U.S. Dist. LEXIS 22318. Recalling again that this was a summary dismissal, would any reasonable juror have to agree that ordinary consumers always (or even usually) take such precautions? And, even if the failure to take such precautions was negligent, was it unforeseeable? While manufacturers have no duty to do the impossible - guard against unforeseeable misuse - they do have a duty to take reasonable care to guard against foreseeable misuse. Foreseeable misuse may be contributory negligence, but, as stated in note 10 above, contributory negligence is no longer a complete defense (except in a handful of states). See Restatement 3rd, Product Liability, § 2, comment p.

11. Strict enterprise liability. At the end of his opinion, Judge Easterbrook expresses sympathy for "Angelina McMahon, severely injured by a common household beverage - and, for all we can see, without fault on her part." He goes on to say:

Using the legal system to shift the costs of this injury to someone else may be attractive to the McMahons, but it would have bad consequences for coffee fanciers who like their beverage hot. First-party health and accident insurance deals with injuries of the kind Angelina suffered without the high costs of adjudication, and without potential side effects such as lukewarm coffee. We do not know whether the McMahons carried such insurance (directly or through an employer's health plan), but we are confident that Indiana law does not make Bunn and similar firms insurers through the tort system of the harms, even grievous ones, that are common to the human existence.

Some have argued that in situations like these tort law should provide compensation, even if there is no product defect or negligent failure to warn, as a form of "enterprise liability," whereby all those who benefit from the creation of the risk pay, through increased coffee prices, for the severe losses randomly inflicted on the unfortunate few. The price of coffee likely would rise very little, given the billions of cups of coffee sold and the few serious injuries. In that case, there would be no effect on the temperature at which coffee is served. On the other hand, if the price increase were high enough that it caused people to prefer the temperature lower rather than pay the increased price, that is as it should be. Indeed, it would be a cogent and salutary demonstration that the benefits of higher coffee temperatures are outweighed by the costs.

The administrative costs of enterprise liability under tort law likely would be greater than with first-party private health and accident insurance or a general government insurance scheme such as Medicaid (although problems of fraud under those schemes might make this debatable). However, those schemes would not have the salutary cost-internalization effect just mentioned, whereby the market would determine how hot people preferred coffee to be, taking into account all its costs including the costs of severe burn injuries to those such as Mrs. McMahon. Moreover, many (including perhaps the McMahons) do not have health insurance (or have high deductibles or low coverage), even fewer have disability insurance to cover lost earnings (or have long waiting periods before such insurance kicks in or low coverage), and no one has insurance for the noneconomic costs of physical injury, such as the loss of life's pleasures due to disability, disfigurement, physical pain and mental suffering.

What do you think of these arguments? Would you be more willing to institute an enterprise liability scheme for those who were unaware of the risks of serious injury as opposed to those who were aware of the risks? Should that make a difference?

. PUBLIC PERCEPTIONS AND EMPIRICAL DATA

a. public perceptions: the mcdonald's coffee spill

By far the most widely known tort case, in the United States and internationally, is the "McDonald's coffee spill" case (Liebeck v. McDonald's Restaurants, P.T.S., Inc., Civ. No. _____), which was tried and decided in Albuquerque, New Mexico in August 1994. The case hit the news wires and was almost immediately reported and derided by newspaper editors and television and radio talk-show hosts throughout the United States and around the world as a case in which an elderly (implicitly clumsy) lady spilled a cup of hot McDonald's coffee on herself while riding (or even while driving) in a car, sued McDonald's, and received a whopping 2.9 million dollars from a sympathetic jury. Some of the stories and editorials mentioned, in passing and without any elaboration, that Stella Liebeck, the plaintiff in the case, had incurred $10,000 in medical expenses, or that she had suffered third-degree burns. Many did not mention even these facts, preferring, as Newsweek later stated, to "give the headline and none of the details." Public opinion polls indicated a large majority of Americans were outraged at the verdict.

The Liebeck case immediately became the universally cited illustration of the excessive number of frivolous law suits, litigious plaintiffs, and out-of-control juries in the United States. It was used as a major weapon to fuel "tort reform" in the United States, and it was cited in foreign countries (e.g., the United Kingdom and Australia) to oppose or favor legal changes which allegedly would lead to or avoid, respectively, the excesses and dysfunction of the United States' tort litigation system.

The case was decided in the midst of the 1994 election campaigns in the United States, in which "tort reform" was a major plank in the Republican Party's platform and "Contract with America." The case was repeatedly and continuously cited by tort reform advocates during the campaigns and thereafter, as the Republican landslide in the elections brought the Republicans control of the U.S. Congress and many state legislatures, and tort reform became one of the major items, often the major item, in the legislative agendas. As Newsweek magazine eventually described the situation, Stella Liebeck became the unwilling "poster lady" for the tort reform movement, especially in Washington, D.C., where the local media was saturated with political advertisements referring to the McDonald's coffee-spill horror-story as part of a massive effort finally to push through a federal product liability law, but also in states around the country where the Liebeck case was used as the major propaganda weapon in the state-law tort-reform efforts.

There was no published opinion in the Liebeck case. However, one might have thought (hoped) that the media would take the minimal effort required to ascertain the actual facts in a case of such pervasive and continuing notoriety and political import as the Liebeck case quickly became and still remains. Yet, with a single exception, no one in the media reported the details of the case until more than six months later, after Public Citizen had held a news conference March 1, 1995 in Washington, D.C., at which Stella Liebeck's son-in-law, Charles Allen, delivered a statement with Stella and other family members present in an attempt to make Congress and the media aware of some of the actual facts in the case. (As part of the final settlement, Stella had had to agree not to make public statements about the case.) The sole exception was the Wall Street Journal, which, approximately two weeks after the verdict was rendered, published an article by Andrea Gerlin that described many of the actual facts in the case. A handful of newspapers reprinted Gerlin's article. The rest of the media continued to refer to the case as before without any mention of the additional facts reported by Gerlin..

Shortly after the Public Citizen news conference, Newsweek published an article which also reported many of the actual facts of the case. As a result of the press conference and the Newsweek article, some editorials and letters appeared which noted that the case was not the horror story it was made out to be. However, the vast majority of references to the case, in the United States and abroad, continued to excoriate it without any mention of the additional facts made available in the press conference or by the two articles. A description of many of the reported facts follows. Unless otherwise noted, the description comes from the Wall Street Journal and Newsweek articles and a published version of Charles Allen's statement at the Public Citizen news conference.

On February 27, 1992, Stella Liebeck, her son Jim and her grandson Chris Tiano left Santa Fe at dawn to drive to the Albuquerque airport to drop off Jim for an early flight. Stella, 79 years old but "quite spry," had just retired from a long career as a department store sales clerk. After leaving the airport, Stella and Chris, who was driving, stopped at a McDonald's drive-up window for breakfast. After they had received their food, Chris pulled over and parked the car so Stella could add some cream and sugar to her coffee. She looked for a place to set the coffee cup down, but there was no cup-holder in the Ford Probe and the dashboard was slanted. Since both hands were needed to remove the lid and add the cream and sugar, she placed the coffee cup between her knees to keep it secure while she removed the lid. While she was attempting to remove the lid, the coffee spilled into her lap.

She screamed as the scalding coffee soaked into and through her sweat suit and scorched her skin. Chris leaped from the car to help. She yanked at her sweat suit and squirmed in the bucket seat, in excruciating pain. Chris raced her to the emergency room, but by the time they arrived severe third-degree burns had spread across her inner thighs, buttocks, groin and labia. Third-degree burns are "full thickness" skin burns that char and blacken the skin and permanently destroy the skin and nerves. Stella remained in the hospital for seven days, went to her daughter's house for three weeks to recuperate, and then returned to the hospital for skin grafts. The grafts were almost as painful as the burns, her daughter said. "She was in tremendous pain; I didn't know if she'd survive this." She had lost 20 pounds, which brought her weight down to only 83 pounds, and was practically immobilized. She was disabled for two years and has permanent scars over 16 percent of her body.

Stella had never initiated a lawsuit and was not looking to initiate one now. However, she and her family thought McDonald's should pay $15,000 to $20,000 to cover her daughter's out-of-pocket expenses (which were about $2000) and wages lost while staying home to take care of her and to reimburse Medicare for over $10,000 of medical expenses. About six months after the accident, Stella's daughter wrote to McDonald's to request reimbursement for these items and to ask that McDonald's lower the temperature of its coffee. Although McDonald's had previously settled many claims by other coffee burn victims for amounts up to and exceeding $500,000, it offered Stella and her family only $800.

While she had been recuperating in her daughter's house, Stella had met a Santa Fe couple who had formerly lived in Texas. The couple knew a Houston attorney, Reed Morgan, who had litigated a coffee-burn lawsuit against McDonald's in 1986 on behalf of a woman in Houston who had also suffered third-degree burns. In that case, Mr. Morgan had had a survey taken of coffee temperatures at 20 McDonald's restaurants and 18 other fast-food restaurants such as Dairy Queen, Dunkin' Donuts and Wendy's. Nine of the 12 highest readings were from McDonald's restaurants. Mr. Morgan also deposed Christopher Appleton, a quality-assurance manager at McDonald's headquarters, who said "he was aware of this risk . . . and had no plans to turn down the heat." McDonald's settled the Texas case for $27,500.

Having had her request for minimal compensation rebuffed by McDonald's, Stella and her family contacted Morgan to have him file a lawsuit against McDonald's for her medical expenses and pain and suffering. Morgan had a survey taken of coffee temperatures at numerous fast-food restaurants around Albuquerque, which indicated that other restaurants all served their coffee at least 20 degrees lower than the approximately 180 degrees at which McDonald's served its coffee. He also obtained McDonald's operating and training manual, which requires its coffee to be brewed at 195 to 205 degrees and held at 180 to 190 degrees for optimal taste.

Morgan offered to settle the case for $300,000, and said later he would have taken half that, but McDonald's did not want to settle. A court-appointed pre-trial mediator, a former judge, recommended that McDonald's settle for $225,000 and said that a jury would be likely to award that amount. McDonald's lawyer did not show up for the mediation, and McDonald's rejected the mediator's recommendation.

Before the trial began, the jurors' thoughts about the case were pretty much the same as those the media and public subsequently had after the verdict became known. The jury foreman, Jerry Goens, said he "wasn't convinced as to why I needed to be there to settle a coffee spill." Juror Roxanne Bell said "I was just insulted. The whole thing sounded ridiculous to me." Juror Betsy Farnham said she also had thought that the suit was frivolous.

But that was before they saw the gruesome photographs of Stella's charred skin, learned of her seven days in the hospital and the subsequent skin grafts, and heard testimony from Dr. Charles Baxter, a renowned burn expert from Southwestern Medical School in Dallas, that coffee at 170 degrees would cause second-degree burns within 3.5 seconds of hitting the skin. Juror Jack Elliott went home and told his wife and daughters "don't drink coffee in the car, at least not hot."

The jury was informed that McDonald's operations and training manual required its coffee to be brewed at 195 to 205 degrees and held at 180 to 190 degrees for optimal taste, and that this was 40 to 50 degrees hotter than coffee made at home. A McDonald's expert argued that any coffee hotter than 130 degrees could produce third-degree burns, so it did not matter that McDonald's coffee was hotter. But a plaintiff's expert testified that lowering the serving temperature to about 160 degrees could make a big difference, because it takes less than three seconds to produce a third-degree burn at 190 degrees, about 12 to 15 seconds at 180 degrees, and about 20 seconds at 160 degrees. According to Stella's son-in-law, McDonald's experts "admitted the[coffee] was too hot for consumption when sold. They did not contest the fact that it took 25 minutes to cool to a drinkable temperature."

Morgan wanted to introduce photographs of the third-degree burns caused by McDonald's coffee that had been suffered by his previous Houston client, as well as photographs of a California woman's second- and third-degree burns that occurred in 1990 when a McDonald's employee spilled hot coffee into her car (the latter case was settled for $230,000). McDonald's lawyer, Tracy McGee, objected: "First-person accounts by sundry women whose nether regions have been scorched by McDonald's coffee might well be worthy of Oprah," she wrote in a motion to the judge, "[b]ut they have no place in a court of law." The judge excluded the photographs and the injured women's testimony, but allowed Morgan to mention the cases.

The jury was further surprised to learn that during the prior ten years McDonald's had received more than 700 reports of coffee burns ranging from mild to third-degree, and had settled burn claims for amounts up to and exceeding $500,000. (Although it is not clear whether it was part of the trial record, the Shriners Burn Institute had complained to the fast-food industry about the serious scalding injuries caused by super-heated coffee.) Christopher Appleton, the McDonald's quality-assurance manager who previously had been deposed in the Texas case, testified that despite the complaints and despite knowing that its coffee was causing serious burns when spilled, McDonald's had not consulted burn experts and had no plans to change any of its coffee policies or procedures. "There are more serious dangers in restaurants," he said. He noted that McDonald's consumer surveys indicated that people like their coffee very hot. He acknowledged that most people would not realize that severe burns were possible with coffee that hot, but stated that McDonald's had decided not to warn its customers about this possibility. (McDonald's had a tiny Caution: Contents Hot label on its cups, which did not impress juror Betty Farnham, who said that she needed her glasses to read it.)

McDonald's safety consultant, Robert Knaff, a human-factors engineer, asserted that 700 complaints, which was about one for every 24 million cups of McDonald's coffee sold, was "basically trivially different from zero." He also misspoke: "It's just that a burn is a very trivial thing - [I mean] a burn is a very terrible thing."

By this time the jurors' views of the case had shifted radically. "Each statistic is somebody badly burned," said juror Betty Farnham. "That [dismissing them as statistically insignificant] really made me angry. There was a person behind every number and I don't think [McDonald's] was attaching enough importance to that." Juror Jack Elliott said he began to realize that the case was about "callous disregard for the safety of the people."

In her closing argument, McGee, the defense lawyer, acknowledged that McDonald's coffee was hot, but argued that was how customers wanted it. She insisted that Stella had only herself to blame. She should not have put the cup between her knees. She should have leapt out of the bucket seat immediately after the spill and removed her clothes. She also argued that the injury was so severe due to Stella's age, since older skin is thinner and thus more vulnerable to injury. "The real question," McGee concluded, ". . . is how far you want our society to go to restrict what most of us enjoy and accept."

The jury took only four hours to reach its verdict. "The facts were so overwhelmingly against the company," said Betty Farnham. "They were not taking care of their consumers." Farnham, who had started the case thinking the suit was frivolous, pushed for a total award of $9.6 million. The jury fixed Stella's actual damages for medical bills and pain and suffering at $200,000, which it reduced to $160,000 after determining that she was contributorily negligent and bore 20% of the overall responsibility for her injury. It also found that McDonald's had engaged in willful, wanton, reckless or malicious conduct, as required for an award of punitive damages. Adopting Morgan's suggestion that punitive damages be assessed equal to one or two days' worth of McDonald's coffee sales, which Morgan estimated to be $1.35 million per day, the jury awarded Stella $2.7 million in punitive damages. "It was our way of saying, 'Hey, open your eyes. People are getting burned'," juror Bell said later.

The trial judge, who, like the Liebecks, was a self-described conservative Republican, agreed with the liability finding, but a month after the verdict he reduced the punitive damages to $480,000 - three times the compensatory damages. He too wanted to let McDonald's know that it "was appropriate to punish and deter" its corporate coffee policy. "This was not a runaway [jury]," he told Newsweek, "I was there." After some additional post-trial maneuvering, the parties settled the case for an undisclosed lesser amount.

After the verdict was publicized, many fast-food restaurant chains reconsidered their coffee-temperature policies, and there were reports that some, including McDonald's, lowered the temperature of their coffee and posted ("coffee hot") warning signs at their drive-up windows, at least initially. However, given the overwhelmingly negative public reaction to the misreported or incompletely reported Liebeck case, it seems that fast-food restaurants now need have little fear of successful litigation against them, no matter how hot their coffee or how many more unsuspecting customers suffer severe third-degree burns. See, e.g., Judge Easterbrook's list of summary judgments against plaintiffs in the McMahon case (although at least some of these cases were seriously lacking in supporting evidence) and the summary judgment in the McMahon case itself.

A restaurant industry article published almost two years after the verdict in the McDonald's case referred to Mrs. Liebeck as "a consumer who was scalded by spilled coffee and successfully put the blame on McDonald's." It recited industry standards for brewing and holding coffee (see note 8 following the McMahon case in section B.2 above), but it did not mention Mrs. Liebeck's extensive third-degree burns nor the substantial probability of such severe burns if coffee is spilled and remains on the skin for only a few seconds at the high temperatures recommended by the industry. The article concluded: "Hot beverages are not dangerous because they can cause injury any more than an automobile is dangerous. It's the handling that matters . . . . To reduce the possibility of being a target of such litigation, retaurateurs should:

(1) Use the proper cup and matching lid for hot beverages.
(2) When serving children, be sure they can carry the purchase easily and without stacking cups.
(3) If desired, post a sign saying: "Our coffee is a quality product, brewed and served properly. Please be careful while enjoying it."
(4) If a spill happens, help wipe it up, replace the beverage and offer to reimburse the customer for dry cleaning when it is the server's fault.
(5) Keep an incident report to document injuries or potential claims for damages."
Would you feel comfortable as a lawyer giving this advice?

Notes

1. Was the Liebeck case an example of a frivolous (obviously non-meritorious) lawsuit, in which a jury sympathetic to an injured 81-year-old female plaintiff decided to sock it to a big corporation despite a clear lack of any plausible argument for liability?

2. Theories of liability. Which of the product liability theories discussed in conjunction with the McMahon case (in section B.2 above) seems to have been relied on in the Liebeck case? Did Mrs. Liebeck have a stronger or weaker case than Mrs. McMahon on the theory of liability (the tortious- conduct issue)? On the evidence submitted to support the theory?

3. Actual damages. Assuming that McDonald's tortiously caused Mrs. Liebeck's injuries, she is entitled to compensation for her actual damages. What types of compensatory (nonpunitive) damages did she suffer? What amounts were assigned by the jury for each type of actual damage? Were the amounts awarded reasonable? Too high? Too low? We will reconsider this question in section D.1 below.

4. Liability for punitive damages. Assuming that McDonald's was negligent, was the imposition of liability for punitive damages in addition to actual damages justified? The question here is not the amount of the punitive damages, but the existence of any punitive damages at all in this case. Should punitive damages ever be available in tort law? If so, what sort of conduct should be required to justify an award of punitive damages? What sort of conduct seemed to have been required for the award of punitive damages in the Liebeck case? Did McDonald's conduct rise to the appropriate level of egregiousness? What evidence suggests that it did or did not? We will reconsider these questions in section D.2 below in conjunction with our discussion of the Tuttle case.

5. Magnitude of punitive damages. Assuming an award of punitive damages was justified, was the very substantial size of the award justifiable, or was it an unjustifiable "windfall" to Mrs. Liebeck (and her attorney)? What factors should be taken into account in determining the appropriate size of a punitive damages award? What factors seem to have been taken into account in the Liebeck case? We will reconsider these questions in Section D.2 below in conjunction with our discussion of the BMW case.

6. Underlying moral principles. Was McDonald's behavior unreasonable or even (as the jury found and the judge upheld) willful, wanton, reckless or malicious? What conception of reasonableness seems to have been argued by Mrs. Liebeck? By McDonald's? What conception of reasonableness seems to have been applied by the jury? By the judge? We will return to these questions in section C below.

b. empirical data

The Liebeck case is the most (in)famous of a number of anecdotes that have helped fuel a common perception, both in the United States and abroad, of excessive and frivolous litigation in the United States. A number of these anecdotes are myths; for those that are not, the facts are usually incompletely and/or incorrectly reported, thereby conveying a misleading impression of the actual case. See, e.g., Fred Strasser, Have "Anecdotes," Not Facts, Fueled the Tort Crisis?, Nat'l L.J., Feb. 24, 1986, at 15; Fred Strasser, Tort Tales: Old Stories Never Die, Nat'l L.J., Feb. 16, 1987, at 39; Gail Diane Cox, Tort Tales Lash Back, Nat'l L.J., Aug, 3, 1992, at 1, 36-37. Moreover, isolated anecdotes, even when correctly reported, do not provide a true picture of the terrain. Much more useful for this purpose are studies which look at data on large numbers of cases. See, e.g., Marc Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Brian J. Ostrom, David B. Rottman & John A. Goerdt, A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 Judicature 233 (Mar.-Apr. 1996); Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - and Why Not?, 140 U. Pa. L. Rev. 1147 (1992). Yet the results of these studies are rarely reported. In the following notes and other empirical notes in this book, an attempt will be made to summarize the results of, or at least to cite, a few of the now quite large number of such studies.

b. empirical data

The Liebeck case is the most (in)famous of a number of anecdotes that have helped fuel a common perception, both in the United States and abroad, of excessive and frivolous litigation in the United States. A number of these anecdotes are myths; for those that are not, the facts are usually incompletely and/or incorrectly reported, thereby conveying a misleading impression of the actual case. See, e.g., Fred Strasser, Have "Anecdotes," Not Facts, Fueled the Tort Crisis?, Nat'l L.J., Feb. 24, 1986, at 15; Fred Strasser, Tort Tales: Old Stories Never Die, Nat'l L.J., Feb. 16, 1987, at 39; Gail Diane Cox, Tort Tales Lash Back, Nat'l L.J., Aug, 3, 1992, at 1, 36-37. Moreover, isolated anecdotes, even when correctly reported, do not provide a true picture of the terrain. Much more useful for this purpose are studies which look at data on large numbers of cases. See, e.g., Marc Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Brian J. Ostrom, David B. Rottman & John A. Goerdt, A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 Judicature 233 (Mar.-Apr. 1996); Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - and Why Not?, 140 U. Pa. L. Rev. 1147 (1992). Yet the results of these studies are rarely reported. In the following notes and other empirical notes in this book, an attempt will be made to summarize the results of, or at least to cite, a few of the now quite large number of such studies.

Empirical Notes

1. Claiming behavior. A recent extensive survey of nonfatal traumatic personal injuries in the United States reported that only about one injury in ten results in a liability claim. Almost two-thirds of the total liability claims were associated with motor vehicle accidents; 44% of those injured in motor vehicle accidents made a liability claim. If motor vehicle accidents are excluded, only 7% of those injured at work made a liability claim, and only 3% of those suffering non-work injuries made a liability claim. A liability claim included dealing directly with the injurer or his or her insurer, regardless of whether a lawsuit was initiated. Deborah Hensler et al., Compensation for Accidental Injuries in the United States 7-10 & n.3, 109 n.1, 120-21 (Rand Corp. Institute for Civil Justice Report R-3999-HHS/ICJ 1991).

Decisions to make liability claims are strongly influenced by attributions of causation and fault. Attributions of causation and fault vary significantly, depending on the type of incident. Only 5% to 15% of those who were injured attributed their injuries solely to chance, rather than also or instead to human conduct (by themselves or others). As can be seen from the following table, of those who attributed their injuries at least partially to human conduct, only those injured in motor vehicle accidents (whether work-related or non-work) and non-product-related incidents at work identified others (rather than themselves) as the "greater cause" of the injury. Almost nine-tenths of those who identified themselves or others as a cause also thought that they or the others, respectively, were at least partially at fault. Id. at 153-57.

Causal Attributions by Incident Type

As the next table shows, only a few of those who believed their injury was caused by chance alone or was mostly or equally their own fault even considered filing a claim; very few of these took any action; almost none were able to obtain a lawyer. Of those who believed their injury was mostly others' fault, only half considered claiming, 29% took any action, and 13% hired a lawyer. The likelihood of taking some action increased as the perceived severity of injury increased, but even among those who viewed their injuries as very or extremely serious only 25% or 33%, respectively, considered claiming and 6% or 13%, respectively, hired a lawyer. Id. at 163-65.

Claiming Behavior by Injured Persons

The study concluded:

Our analysis of [the liability claiming] process yields a more complex picture of Americans' behavior than is often articulated in policy debates over tort liability. . . . With the exception of motor vehicle accident victims, only a minority, even among those who are quite seriously injured, ever consider claiming; of those, just a small fraction use legal mechanisms. In this respect, Americans' behavior does not accord with the more extreme pictures of litigiousness that have been put forward by some. . . . [W]e did not find statistically significant differences between Americans and Britons in initiating legal claims.

Id. at 110-11; see id. at 126-30. The study further concluded:

The reasons for not undertaking a claim showed a strong endorsement of norms of responsibility and fairness. . . . Norms of responsibility and fairness also figured prominently in the reasons given for the decision to initiate a liability claim, but economic concerns were at least as important. . . . People fail to consider claiming because they believe that either no one or they themselves are responsible for the injury. Those who do not claim believe that no one is at fault and that they will have little difficulty covering their expenses. Nonclaimers also tend to view liability claiming as trouble-making and objectionable. Claimers, on the other hand, believe that the tort system is supposed to ensure that those responsible for the injury pay for their expenses, and they claim to obtain what they think they both need and deserve.

Id. at 169-170, 172.

2. Medical malpractice claims. The greatest amount of empirical work has been done in the area of medical malpractice. Every empirical study of medical malpractice claims in this century has concluded that there is a severe problem of underclaiming and undercompensation: only about one in ten persons with a valid claim even files a claim. See, e.g., Patricia M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy ch. 2 (1985); Brian Ostrom et al., What Are Tort Awards Really Like? The Untold Story from the State Courts, 14 Law & Policy 77, 81 (1992); Minnesota Dep't of Commerce, Medical Malpractice Claim Study, 1982-1987, at 31 (1989).

A recent, often-cited study of hospital medical records in New York found that 3.7% of the patients suffered an adverse outcome as a result of medical negligence, but that, at best, only one in eight patients with valid claims, based on the medical records, file a claim and only one in sixteen receive compensation from the tort liability system. The study also found, however, that only eight of the 47 claims actually filed (which could be matched with hospitalizations in the study sample) had been determined during the medical record review to be negligently caused adverse outcomes. Harvard Medical Practice Study, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York 7-30 to 7-35, 11-4 to 11-5 (1990). These findings have been used by some (including the study's authors) to assert that tort liability for medical malpractice is a lottery both ways: not only are only one in eight (or ten) valid claims actually filed, but, of the claims actually filed (which are often erroneously cited as having been successful), only one in six is valid. In its concluding summary, the study itself treats the claims that were not determined during the medical record review to be negligently caused adverse outcomes as "appear[ing] to be non-meritorious." Id. at 11-5; but see id. n.2 (qualification in very small print).

Yet the study previously correctly emphasized that no conclusions can be drawn from it about the overall frequency or specific occurrence of invalid claims, either as filed or as erroneously found to be valid by the tort liability system. First, the number of filed claims was too small to justify any generalization regarding overall frequency. Second, the study's authors did not have access to the litigation files (if any) for any claim, and there might very well have been negligence that was not reflected in the medical records. Indeed, there are strong reasons, including fear of litigation, to believe that such negligence often would not be recorded. Third, few of the filed claims had been closed, so it was not known how many of the claims had actually been pursued, settled, tried, dismissed, or found by a judge or jury to be proven or not proven. Moreover, even a finding that a claim was not legally proven would not imply that it was frivolous rather than a good faith, plausible claim. Fourth, the study's definition of an adverse event employed a (too) high threshold, in that it required a disabling injury, which the study admitted "does not encompass all the valid grounds for a malpractice claim." Fifth, the study recorded an adverse event as being due to medical negligence only if each of two independent physician reviewers agreed that such was the case, or, if the two disagreed, if a third "senior" physician broke the tie in favor of negligent causation. Thus, even though one of the physician reviewers evaluated the case as involving both negligence and causation, it would not be recorded as a negligently caused adverse outcome if the other initial reviewer and the third senior reviewer both found a lack of negligence or a lack of causation. Moreover, "close calls" on the less-likely-than-not (rather than more-likely-than-not) side were recorded as not being negligently caused adverse outcomes. Yet, in the context of medical litigation, there clearly is a plausible, non-frivolous liability claim if even one (independent) physician believes there was negligent causation, especially if he believes this is "more likely than not" to be true, but also even if it is a "close call." The study also noted that some of the alleged adverse events, especially those involving alleged failure to diagnose properly, may well have not been picked up by its screening methodology. If the claims involving the sorts of issues discussed in this fifth point were all treated as being plausible negligence claims, over half of the filed claims would have been recorded as being valid. See id. at 7-30 to 7-35.

The Harvard Study was a retrospective study confined to the medical records. A recent prospective study was undertaken in which trained observers contemporaneously recorded errors that were discussed by medical personnel during regularly scheduled day-shift weekday clinical meetings in a major urban hospital. Although the observers only attended regularly scheduled weekday (Monday through Friday) day-shift meetings, they found a much higher incidence of medical errors than has generally been assumed or reported: at least one medical error for 45.8% of the 1047 patients studied, and at least one serious adverse outcome (ranging from temporary physical disability to death) caused by medical error for at least 17.7% of the patients. 18.2% of the patients were subject to medical errors the seriousness of which was not discussed. Few of these medical errors were recorded in the medical records. In fact, some physicians stated they did not include information about errors in the patient's chart because they wanted to avoid litigation. Only 13 (1.2%) of the patients made liability claims. Eleven of these 13 had been identified by the study as having an adverse event due to medical error. Four years after the statute of limitations for filing suit on the adverse events had ended, only 3 of the 13 claiming patients had received compensation, 8 claims had been dropped, and 2 cases were still pending. See Lori D. Andrews, An alternative strategy for studying adverse events in medical care, 349 The Lancet 309, 311-12 (Feb. 1, 1997); Lori D. Andrews, Medical Error and Patient Claiming in a Hospital Setting, American Bar Foundation Working Paper #9316 at 7, 10-11 (1995).

Other studies of actual case files by doctors have found that there are very few instances of frivolous malpractice claims being brought. See, e.g., Mark Taragin et al., The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims, 117 Annals Int. Med. 780 (1992); Tonn & Associates, Medical and Hospital Professional Liability: A Report Prepared for the Texas Health Policy Task Force (July 1992) (funded by the Texas Hospital Ass'n, the Texas Medical Ass'n, and the Texas Trial Lawyers Ass'n); Neil Vidmar, Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets, and Outrageous Damage Awards (1995).

More common (apparently especially in California) is collusion by doctors and lawyers to fraudulently create or inflate auto-accident or worker-compensation claims. Most common is fraudulent submission of nonexistent or inflated medical charges by doctors and hospitals to government or private insurance plans.

3. Tort caseload. Tort suits make up a small percentage of the overall caseload. State courts process 95% of the tort cases in the United States. In 1993 and 1994, tort suits constituted only 3% of the total cases filed in state courts of general jurisdiction (around 10% of the civil filings, which made up 27% of the total filings) and less than 1% of the total cases in state courts of limited jurisdiction (4% of the civil filings, which made up 15% of the total filings). Although there are variations among states, overall state tort filings, which rose between 1983 and 1986 after modest growth during the prior decade, have remained fairly steady since 1986 and have decreased since 1990: "[t]here is no evidence of a tort litigation 'explosion'." National Center for State Courts, Examining the Work of State Courts, 1993 at viii, 6, 19, 22; National Center for State Courts, Examining the Work of State Courts, 1994 at 7, 13, 23, 32.

Tort filings in federal courts have declined substantially since 1985. Special Issue: Litigation Dimensions - Torts and Contracts in Large Urban Counties, 19(1) State Ct. J. 7 (1995). Tort suits constitute about one-fifth of civil litigation in the federal courts, and drop to only one-tenth if multiple suits arising from a single incident or type of product are counted as a single case (which is the way they are usually managed by the courts). See Special Report: Probing the Backlog, Nat'l L.J., Aug. 7, 1995, sec. C. During fiscal years 1994 and 1995, 18% of the civil cases terminated in federal district courts were tort cases. U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Federal Tort Trials and Verdicts, 1994-95, at 1 (NCJ-165810, Dec. 1997).

Contract and other business suits, rather than tort suits, constitute the largest part of both new and "backlogged" civil litigation and are generally the most burdensome in terms of pre-trial discovery and demands on judicial resources. Id. Among the most litigious litigants are the business proponents of tort reform. See Citizen Action, Wilful and Wanton Hypocrisy: Tort "Reformers" Flood Courts with Lawsuits (April 1995).

4. Jury verdicts. During fiscal years 1994 and 1995, only 4.1% of the terminated tort cases in federal district courts were decided by a trial, of which 72% were decided by juries. Either the plaintiff or the defendant may request a jury trial, and lawyers for both sides often prefer juries, although most requests are made by plaintiffs since they initiate the pleading process. Due to a federal law (28 U.S.C. § 2402) which requires a trial by judge rather than jury in most cases in which the United States is a defendant, 93% of such cases were decided by judges. U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Federal Tort Trials and Verdicts, 1994-95, at 1-3 (NCJ-165810, Dec. 1997). Less than 8% of state tort cases go to trial, and less than 3% go to jury trial. About 75% are settled. Jury verdicts, however, provide the yardsticks against which settlement negotiations are measured. See National Center for State Courts, Examining the Work of State Courts, 1993 at 20, 24; National Center for State Courts, Examining the Work of State Courts, 1994 at 34; U.S. Dep't of Justice, Bureau of Justice Statistics, Tort Cases in Large Counties 2-3 (1995).

Empirical studies report a very high degree of agreement by judges with jurors' liability determinations. See Harry Kalven, Jr., The Dignity of the Civil Jury, 50 Va. L. Rev. 1055 (1964) (judges and juries agreed on liability in 79% of the cases; in 10% judges would have found liability where juries did not, and in 11% juries found liability where the judges would not have; judges would have found liability in 54% of the total cases, whereas the juries actually held the defendants liable in 55%); R. Perry Sentel, Jr., The Georgia Jury and Negligence: The View from the Bench, 26 Ga. L. Rev. 85 (1991) (similar results). Several empirical studies have reported higher plaintiff success rates with judges than juries in medical malpractice and product liability lawsuits. See, e.g., Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992); Neil Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118 (1992).

Studies have uniformly found that, while juries find in favor of plaintiffs in around 50% of all tort cases (compared to around 60% of contract and property cases), they are much more likely to find in favor of defendants in the two most controversial and publicized areas of tort liability: product liability and medical malpractice. Juries find in favor of defendants 60% of the time in state product liability cases, and 70% of the time in state medical malpractice cases. National Center for State Courts, Examining the Work of State Courts, 1993 at 25; National Center for State Courts, Examining the Work of State Courts, 1994 at 36; U.S. Dep't of Justice, Bureau of Justice Statistics, Civil Jury Cases and Verdicts in Large Counties 5 (1995); Special Issue: Litigation Dimensions - Torts and Contracts in Large Urban Counties, 19(1) State Ct. J. 24, 32 (1995); Stephen Daniels, Verdicts in Medical Malpractice Cases, Trial, May 1989, at 23. Doctors reportedly are winning a higher and higher percentage of verdicts, approaching 90% in some of the largest urban jurisdictions. See Erik Moller, Trends in Civil Jury Verdicts Since 1985 at 15-19 (Rand Corporation Report MR-694-ICJ 1996). During fiscal years 1994 and 1995, plaintiffs won in 43% of the total tort cases decided by trials in federal district courts, but in only 32% of the medical malpractice cases and only 27% of the product liability cases. Juries decided almost three-fourths of these cases. Plaintiffs won in 54% of the cases in which the United States was a defendant, 93% of which were tried by judges rather than juries. U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Federal Tort Trials and Verdicts, 1994-95, at 1 (NCJ-165810, Dec. 1997).

Studies have routinely found that jurors generally act in good faith, rationally and competently. See, e.g., Valerie P. Hans & Neil Vidmar, Judging the Jury (Plenum Press, 1986); Reid Hastie, Steven D. Penrod & Nancy Pennington, Inside the Jury (Harvard University Press, 1983); Saul M. Kassin & Lawrence S. Wrightsman, The American Jury on Trial (Hemisphere Publishing, 1988); Verdict: Assessing the Civil Jury System (Robert E. Litan ed., 1993); Michael J. Saks, Small-group Decision-making and Complex Information Tasks (Federal Judicial Center, 1981); Joe S. Cecil, Valerie P. Hans & Elizabeth C. Wiggins, Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 Am. U.L. Rev. 727 (1991); Richard Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 Mich. L. Rev. 68 (1981). In a recent conference which drew together leading judges, plaintiff and defense lawyers, corporate officials, law professors, consumer representatives and social researchers, there was a consensus on the good faith, rationality, and competence of the civil jury and on the importance of retaining the civil jury given the values that it serves in our society. See Charting a Future for the Civil Jury System: Report from an American Bar Association / Brookings Symposium 1-3, 8-11 (1992).

5. Public opinion. The pervasive and constantly repeated publication (on television, in the print media, and on billboards) of inaccurate information and innuendo on the alleged litigousness of Americans, alleged pro-liability tendency of juries, and alleged lack of integrity of the civil justice system as a whole has had a negative impact on the objectivity of jurors, judges and (less surprisingly) legislators.

Recent studies report that jurors are now skeptical of plaintiffs' torts claims against business and frequently mention the need to limit awards in the light of the perceived litigation crisis. See Valerie Hans & William S. Lofquist, Jurors' Judgments of Business Liability in Tort Cases: Implications for the Litigation Explosion Debate, 26 Law & Soc. Rev. 85 (1992); Edith Greene, Jane Goodman & Elizabeth F. Loftus, Jurors' Attitudes About Civil Litigation and the Size of Damage Awards, 40 Am. U.L. Rev. 805 (1991). Jurors are drawn from the general public, and public opinion surveys report that the public generally believes the misinformation regarding frivolous claims and out-of-control juries. See Nat'l L.J., Sept. 7, 1992, at 6 (residents in the Rio Grande Valley of Texas [where "tort reform" billboards are rampant] "believe frivolous lawsuits increase medical costs, consumer costs and insurance premiums;" three-fourths of respondents favored limiting lawsuit settlements and damage awards; a majority favored no-fault insurance); Quayle's View on Liability Suits is Widely Held, Poll Shows, Wall St. J., Feb. 19, 1992, at B10 (Roper poll findings that 63% of respondents agreed that "people often start frivolous lawsuits because awards are so big and they have so little to lose"; almost 70% would limit punitive awards; a majority wanted to cap awards for lost wages and pain and suffering); Sean F. Mooney, Crisis and Recovery: A Review of Business Liability Insurance in the 1980's (Insurance Information Institute, May 1992), at 17-19, 37 (identifying effects of "tort reform" debate on attitudes of the general public, juries and judges as much more important than enacted "reforms").

For discussions of the wide gap between public perceptions of the operation of the tort liability system and the actual empirical data, see Stephen Daniels & Joanne Martin, Civil Juries and the Politics of Reform (1995); Neil Vidmar, Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets, and Outrageous Damage Awards (1995); Torts: Understanding the Patterns in the Courts (Special Issue), 16 Justice Sys. J. (No. 2 1993); Marc Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System-and Why Not?, 140 U. Pa. L. Rev. 1147 (1992); John W. Wade, An Evaluation of the "Insurance Crisis" and Existing Tort Law, 24 Hous. L. Rev. 81, 86-88, 95-96 (1987); Margaret Cronin Fisk, The Reform Juggernaut Slows Down, Nat'l L.J., Nov. 9, 1992, at 1, 34-37; Andrew Blum, Debate Still Rages on Torts, Nat'l L.J., Nov. 16, 1992, at 1, 32-33, 35. In response to one comprehensive (at the time) review of the empirical evidence (Professor Saks' article), the president of the American Tort Reform Association stated that he had little use for such articles ("just show biz"), that there is no relationship between the tort reform movement and the perception or reality of a litigation explosion, and that his association is instead "concerned with the efficiency and fairness of the American justice system." Ken Myers, Professor's Study of Tort System Finds No 'Litigation Explosion', Nat'l L.J., Sept. 7, 1992, at 4. For one account of the pervasive and unrelenting corporate lobbying of legislators, judges, academics and the media, see The Alliance for Justice, Justice for Sale: Shortchanging the Public Interest for Private Gain (1993).