March 5, 2012 In General, Personal Injury

Scalded Privates: The Short (But Real) Story Behind the Supposedly "Frivolous" McDonald’s Hot Coffee Lawsuit

Scalded Privates: The Short (But Real) Story Behind the Supposedly “Frivolous” McDonald’s Hot Coffee Lawsuit

“Can you believe it? Some lady got millions for burning herself with her own hot coffee from McDonald’s!”

You’ve no doubt heard all the talk before. The case has become the poster child for so-called frivolous lawsuits and politicians screaming for silly tort reform. The verdict supposedly represents everything that’s wrong with America and the legal system.

Of course, there’s only one problem: the legend has outgrown the truth.

As Paul Harvey used to say: “And now, here’s the rest of the story.”

The plaintiff was Ms. Stella Liebeck. She was a grandmother who attempted multiple times to settle her case with McDonald’s. They refused.
She wasn’t driving down the street when she got burned. She was a passenger in a stopped vehicle. They had ordered coffee at the drive-thru window. After receiving the order, her grandson pulled his car forward and stopped momentarily so that she could add cream and sugar. The coffee spilled when she was attempting to remove that hard plastic lid from the little cheap styrofoam cup.
The coffee wasn’t just hot — it was scalding. Indeed, it was discovered during the case that McDonald’s actively enforced a requirement that its restaurants keep coffee at 180-190 degrees Fahrenheit — only a few degrees away from the boiling point! By comparison, home coffee makers generally maintain coffee at 135-140 degrees.
Notwithstanding, a McDonald’s’ quality assurance manager testified that the company enforced the 185 degree requirement even thought they knew a burn hazard existed with any food substance greater than 140 degrees, and that it was not fit for human consumption because it would burn the mouth and throat, and cause full thickness burn injuries to the skin in only 2-7 seconds.
In fact, McDonald’s produced documents showing that there were more than 700 other claims by other people similarly burned by its coffee over a 10- year-period. McDonald’s quite clearly knew the risk involved and simply chose to ignore it.
Ms. Liebeck’s injuries were legitimate. In fact, they were horrendous. Her vascular surgeon determined that she suffered full thickness burns (3rd degree burns) over 6 percent of her body — including her inner thighs, perineum, buttocks, and genital and groin areas. (See the photo below if you have a strong enough stomach.)
She was hospitalized for 8 days, during which time she underwent skin grafts in her genital area.
Despite these grotesque injuries, Ms. Liebeck merely asked McDonald’s to pay for the cost of her medical treatment, and offered to settle the case for only $20,000. They refused.
At the end of the day, this wasn’t a runaway jury. Indeed, Ms. Liebeck was only awarded $200,000 in compensatory damages. And even this amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault for the spill, and thus they made a corresponding 20% reduction to the damages.
Based on the evidence of past claims and McDonald’s conscious decision to ignore a substantial risk, the jury also awarded $2.7 million in punitive damages. The idea behind punitive damages is to make sure the defendant is properly motivated to change its conduct by taking into account the fact that there were other instances of egregious damages for which they might have escaped appropriate responsibility. And even then, the $2.7 million punitive verdict only equaled about 2 days of coffee sales at McDonald’s. 2 whole days.
And the court reduced even that amount to only $480,000.

So take a look at the photo and ask yourself whether you’d willingly trade those injuries and skin grafts to genitalia for a mere $600,000.

No way. Not me. No thanks.

Doesn’t sound so “frivolous” anymore, does it?

February 22, 2012 In General

Bedbugs and the Law: Use this Helpful Website to Check your Hotel Before you Travel

Lawyer John Day at the Day on Torts Blog has an interesting post today about a recent article concerning bed bug litigation fueled by an explosion in hotel bed bug infestations across the country. He cites these statistics from the article:

Although hotels have become familiar with the surge of bed bug claims in recent years, the volume and nature of such claims are expected to continue to grow. Bed bug infestations are reported to have increased 300% nationally between 2000 and 2001, 70% between 2001 and 2002, and 70% between 2002 and 2003.22 Approximately 20,000 bed bug reports have been made to bedbugregistry.com since summer 2010 for hotels throughout the United States.

The most interesting part of the quote? www.BedBugRegistry.com — a website where travelers and consumers can check out prospective hotels.

You can bet I’ll be using that website before I travel.

February 6, 2012 In Medical Malpractice

Law Talk: Inspector General Report Shows Only 14% of Hospital Errors Are Actually Reported

For all the talk about frivolous lawsuits and the need for tort reform and damage caps, the Inspector General of the Department of Health and Human Services recently released a report showing that only 14% of hospital errors are actually ever even reported. Moreover, the report showed that even when errors were identified, most hospitals rarely changed their policies and practices to prevent repeat errors, saying the event did not reveal any “systemic quality problems.”

One example of serious hospital error is wrong site surgery, which is estimated to occur up to 6 times per day in the United States. One such example is a 3 year old Oregon boy who was recently scheduled for surgery to correct a lazy left eye but wound up having unnecessary surgery on his right eye!

Another recent study released in the journal Health Affairs found that fully one-third one-third of hospital visits lead to injury, with as many as 90% of hospital errors are missed by current reporting systems. Further, the report showed that as many as 44% of the errors could and should have been prevented.

Patients and families should take great care to be a diligent partner in your own health care. Ask questions, monitor your progress and medications, do your own research, and ask more questions!

If you suspect that you or loved one have been the victim of one of these all-too-common errors, call an attorney to see about your rights and how you can help prevent against similar errors for others in the future. In the light of the ineffectiveness of the voluntary reporting systems currently in place, a robust judicial remedy is a much-needed tool for accountability and proper deterrence of avoidable errors.

If you need help, feel free to call our office for a free consultation. You can also browse our website for lots of helpful information about medical errors and the legal process involved.

January 25, 2012 In Estate Planning

Change to the Tennessee Inheritance Tax Proposed

Governor Bill Haslam and Republican leaders in the state legislature have proposed changes to the Tennessee Inheritance Tax as discussed recently in an article in The Tennessean. The current Tennessee Inheritance Tax Exemption amount is $1 million with inheritance tax rates ranging from 5.5% – 9.5%. The proposal would raise the exemption to $1.25 million and will continue to raise the exemption incrementally over the next several years to $5 million. The current Federal Estate Tax Exemption amount is also $5 million.

The cut in inheritance tax would cost the state of Tennessee approximately $14 million a year and is paired with a proposal to a reduction in state sales tax on food. Democrats have expressed little opposition to cutting both taxes. Haslam plans to cover the tax loss with rising revenue from other taxes.

The change to the Tennessee Inheritance Tax would keep wealthy residents from leaving Tennessee and avoid the sale of family businesses to pay death taxes.

January 19, 2012 In Medical Malpractice

Law/Medical Tip: Some Tips to Avoid Potentially Fatal Pharmacy Mix-Ups

Most pharmacists do a wonderful job. However, preventable mistakes occur more often than you might think.

We recently posted the news story about the poor pregnant woman who was mistakenly dispensed a cancer drug with side-effects that included induced abortion. Moreover, in just the past few years, our firm has personally represented 2 different plaintiffs in cases involving 2 separate national chain pharmacies that mistakenly dispensed the wrong medication. And unfortunately, it had serious consequences in those couple of instances — so bad, in fact, that we ended up settling those cases for amounts exceeding six figures to cover the medical bills and impairment of life. Feel free to call us if you or a family member find yourself in a similar situation and need help.

Of course, the best option is to avoid being a plaintiff in the first place. So protect yourself on the front end. Resolve to be a responsible partner in your own healthcare. Communicate with your pharmacist and other healthcare providers. Don’t fall victim to the “white coat mentality” where you are intimidated to follow-up or ask what you might think is a stupid question. ALWAYS ASK EACH AND EVERY QUESTION YOU MAY HAVE, NO MATTER HOW DUMB YOU THINK IT MIGHT BE. Also, stay vigilant about your medications. Know what your pills are supposed to look like, and what your dosage is supposed to be, and then check all prescriptions carefully (even refills) to make sure you have the correct medication.

January 17, 2012 In Estate Planning, Uncategorized

Too Many Cooks in the Kitchen

There are a lot of different phrases and slogans to describe a situation where you have too many people in charge. Democracy may be preferable in some situations, but your estate plan is often not one of those situations. People often tell me they want to be fair so they want to name all their children as executors, trustees or powers of attorney at their death or incapacity. They feel that naming everyone will insure that things go smoothly and that there is no tension among the siblings that one child was treated preferentially. In fact, naming multiple children does not relieve tension or promote harmony…it creates tension, confusion and sometimes complete chaos.

As I frequently tell the disgruntled sibling who is upset that his or her brother or sister was named as trustee or executor, serving in these roles is a job, not a privilege. As a beneficiary, you get to sit back, let someone else do the work and then collect the proceeds. As an executor or trustee, you have to do all the work, deal with the disgruntled beneficiaries and then receive, in many cases, the same proceeds as the person who got all the benefits without any of the work.

The decision as to who will serve in these important roles is a big decision and should not be taken lightly. But in many cases, less is more. One person or entity is often the best choice. Two can insure that checks and balances are in place in case one person is out of line. More than two guarantees administrative headaches, fighting and taking sides. The administrative process of probate and trust administration is challenging enough because it usually involves families and money, two very emotionally-charged topics. When you add the grief from the loss of a loved one, too many cooks in the kitchen adds insult to injury. Instead of looking at what will be viewed as the most fair, consider who is the best-suited for the task and the most able to navigate family issues and money. In so doing, the result is often more fair for everyone. Unfortunately, fair or not, too many cooks in the kitchen rarely leads to a desirable result.

January 17, 2012 In General

Law Talk: Submit your claim online to recover free money/property!

Ever wonder what happens to money and property that gets “lost in the shuffle” so to speak?

Examples: that old utility deposit or lease deposit you or your wife forgot to follow up on before you moved; or the last interest payment that was due in your old savings account that you closed; or maybe your mom or dad forgot about an old safety deposit box containing old jewelry or family heirlooms?

It’s actually VERY common. Indeed, if you forgot about a deposit (or didn’t even know about it), how could you possibly even know to claim your refund, right?

Ever wonder what happens to that money or property?

This is referred to legally as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, the utility, etc.) must turn it over to the State along with information about the name and last known address of the owner. They CANNOT keep the property; however, they are not required to track down the owner, either. They can simply turn it over to the State and be done with it.

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year. But here’s the good news — the State maintains a website where you can do a name search and then claim your property at no cost. You can search for yourself, your parents, your kids, your friends, etc. And then just submit a claim form with identifying information as needed and the State will turn the property over to you.

As noted above, it is QUITE common for people to forget about small deposits here and there. I personally learned about an old utility deposit from back when I was in college and got my refund! It wasn’t much, but every little bit helps!

Use the Comment section below and share any success stories you have finding old/lost property or funds.

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

Click the “Like” and “Share” buttons below to let your friends know about this post. And take advantage of our Law FAQ series by submitting questions or topics that you want to know more about.

January 13, 2012 In Estate Planning

Reminder: Estimated Tax Payments due Jan. 17 (for self employed persons, etc.)

For all you estimated tax filers, here’s a friendly reminder that your next payment (using Form 1040-ES) is due next Tuesday, January 17, 2012. (The ordinary deadline of the 15th is extended because the 15th falls on a Sunday, and the next day is the MLK holiday which is also a postal holiday.)

NOTE: Estimated taxes are generally paid by self-employed persons, although others are potentially required to file. According to the IRS website instructions: ”Estimated tax is the method used to pay tax on income that is not subject to withholding. This includes income from self-employment, interest, dividends, alimony, rent, gains from the sale of assets, prizes and awards. You also may have to pay estimated tax if the amount of income tax being withheld from your salary, pension, or other income is not enough.”

MORE: Previous Blog Post — What is an Estimated Tax Payment?

January 12, 2012 In Estate Planning

Law FAQ: What is Digital Estate Planning?

Death in the digital age is a lot more complicated than it used to be. In the past, it was easy to search paper records and watch the mail for bills and account statements to gather information about an estate. It’s not so easy today. Now many, if not all, records are filed or transmitted electronically, online. And unfortunately, people have not left the passwords and location for the electronic records that the surviving family members will need.

In many cases, survivors may not even be aware of the existence of accounts or assets, prompting a load of questions: Can we find this stuff? Which computer is it on? Is it stored in the cloud? What about the smartphone? Can we circumvent the password or decrypt the data?

But there are other potential pitfalls, too. What, for example, happens to your social-network accounts when you die? Some people want them perpetuated while some people them destroyed. Instructions should be provided and included with the list of passwords that are going to go to their survivors.

You should also consider potential liabilities lurking in your digital estate. For example, what if you have trade secrets or other sensitive information on your computer and, after your death, your family donates the computer for recycling without wiping the hard drive clean? If that trade secret falls into the wrong hands, your estate might be liable.

Digital-savvy estate planners advise clients to take three basic steps. First, do a complete inventory of all digital accounts and assets (see Digital Assets Checklist below) so that your estate administrator will know just what you have of potential value (or liability) and where it is. Second, assemble a list of all passwords. Third, select a fiduciary and give them the proper power to administer your estate and follow through with your wishes.

Digital Assets Checklist

• Home-security systems

• Smartphones

• Computers

• Voice mail

• Email accounts

• Cloud storage

• Social-network accounts

• Web pages and blogs

• Financial accounts (banks, stock trading, tax, etc.)

• Online sales and purchasing accounts

• Domain names

• Intellectual-property rights (manuscripts, music, photographs, etc.)

• Video games and virtual worlds

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January 9, 2012 In Uncategorized

Texting while driving… some practical solutions

Every cell phone owner has repeatedly heard about the dangers of texting while driving, yet texting continues to be one of the major contributing factors in vehicle accidents. Here are some eye-opening facts that show the true dangers of texting while driving:

Five seconds is the average time your eyes are off the road while texting. When traveling at 55mph, that’s enough time to cover the length of a football field. (2009, VTTI)
A texting driver is 23 times more likely to get into a crash than a non-texting driver. (2009, VTTI)
Of those killed in distracted-driving-related crashes, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (2009, NHTSA)
Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (2005, Insurance Institute for Highway Safety)
49% of drivers with cell phones under the age of 35 send or read text messages while driving. (2011, Harris Poll)
60% of drivers use cell phones while driving. (2011, Harris Poll)

While the best solution is to turn your cell phone off as you drive, here are a few free smart phone apps that have been designed to lessen the dangers associated with texting while driving:

http://www.parkthephone.org/ – This free app is great for parents of teenage drivers. It has the ability to detect when a person is in a vehicle, and if the person is driving, the app will silence the phone, auto reply to text messages, send calls to voice mail, and monitor speed and report speeding exceptions [Note: this app is not yet available for the iphone].
http://www.drivesafe.ly/ – DriveSafe.ly^™ is a free mobile app that reads text (SMS) messages and emails aloud in real time and automatically responds without drivers touching the mobile phone.
http://www.vlingo.com/ – This app has been likened to Siri on the iPhone 4S. For driving purposes, this app will allow you to speak a text message or ask for directions without having to type anything on your phone.

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