BOOK REVIEW by David V. Diggs, Chair MTLA Family Law Section
Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue
S
tephanie Mencimer’s Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are taking Away Your Right to Sue, Free Press, 2006, is a scathing
indictment of the right wing conspiracy to restrict citizens’ ac- cess to the civil justice system. It is a must-read for every trial lawyer, injured person and anyone else who values the constitutional right to a fair and impartial trial. According to the dust jacket,
Mencimer is a contributing editor at The Washington Monthly and has worked as an investigative reporter at The Washington Post and as a staff writer for Legal Times. She also maintains an interesting blog,
www.thetortellini.com, which she describes as “bites of law and politics, with sauce.” It is a somewhat reluc- tant endeavor as she explains that she’d rather be doing “real reporting.” In Blocking the Courthouse Door, Mencimer painstakingly
spells out how the Republican Party and its wealthy corporate allies have strived for more than 50 years to limit wrongdoers’ liability. In her first chapter, “Too Good to Check: Media Myths about the Civil Justice System,” she traces the genesis of the “tort reform” movement that has been marked by “the resourceful- ness of the insurance lobby and the weak counterpunches of the plaintiffs’ bar.” As early as the 1950s, an insurance company mailed reprints of an article, “Why Your Automobile Insurance Costs So Much,” directly to jurors in a motor vehicle case. The article decried that excessive jury verdicts were driving rates up. Lacking the diabolical finesse of today’s media savvy “tort reformers,” the insurance company vice-president was held in contempt and fined $1,000 for jury tampering. Critical of the media’s complicity in this campaign of mis-
information, Mencimer inventories the stories that have been planted in national magazines and on television designed to look like investigative journalism. One of the earliest examples she sites was a 1962 CBS broadcast “Smash-Up,” a fictionalized docudrama, which “portrayed sleazy lawyers faking auto ac- cident cases.” The script was partially written by the Insurance Information Institute, the industry’s public relations wing. Mencimer exposes another long-running staple of the
“reformers,” the fictional lawsuit horror story. In 1977 the insurance company Crum & Forester sponsored one of the first print ads of this type. It relayed the tale of a fellow who collected $500,000 for injuries suffered while using a lawn mower as a hedge clipper. Crum & Forester later was forced to concede that the story was a complete fantasy. Demonstrably false accounts are not nearly as useful to
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the “tort reformers” as real live tort system cheats, even if the facts are twisted in the retelling. Blocking the Courthouse Door may be worth its $26 cover price alone for the light Mencimer sheds on the notorious McDonald’s coffee case. While out with her grandson, 79-year- old Stella Liebeck, stopped at the drive-through window of an Albuquerque McDonald’s. After making her purchase, Ms. Liebeck’s grandson pulled over to the curb, so that his
grandmother could add cream and sugar. As she lifted the lid, coffee spilled onto her lap and she began to scream horribly. The grandson drove directly to the hospital, where Ms. Liebeck was treated for third-degree burns to her thighs and genitals. During a weeklong stay, she underwent painful skin grafts and was permanently disfigured. Mencimer reveals that Stella Liebeck was from a family of
conservative Republicans and did not initially intend to file suit. Rather, she attempted to contact McDonald’s directly to alert them to the danger and to request payment for medical bills, which had mounted to $20,000. McDonald’s replied that it had no intention to change its coffee policy, but offered her $800 for her trouble. Ms. Liebeck hired a lawyer. The facts presented at trial clearly show that the coffee case
was anything but frivolous. Experts testified that it was the fast-food chain’s policy of serving coffee at 195 to 205 degrees, “liquid temperatures high enough to peel skin off the bone in about seven seconds or less.” Jurors also heard evidence of more than 700 complaints about serious burns caused by McDonald’s coffee. McDonald’s executives were forced to admit that despite their knowledge of the numerous complaints of customers burned to the bone, they did nothing to change the policy. The jury awarded $200,000 for economic damages, but this
was reduced 20% in proportion to Ms. Liebeck’s comparative negligence. They also awarded $2.7 million in punitive dam- ages– “about two days profits from McDonald’s coffee sales.” The Republican trial judge reduced the punitive damage award to three times actual damages or $480,000. The case eventually settled for an undisclosed amount, presumably for less than $540,000, which had survived post-trial motions, and certainly for less than the original verdict of $2.86 million. Mencimer notes that the “myth that Stella Liebeck actu-
ally received $3 million for her coffee spill has proved highly resistant to correction.” It was simply too good a story to let the facts get in the way. “The Liebeck case was a gold mine for tort reformers looking to support legislation (limiting products liability actions) and they used it repeatedly in advertising and
Trial Reporter Fall 2007
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