October 2004

I-884, the Education Trust Fund Initiative, raises the sales tax from 6.5 to 7.5%. Sure, no one likes taxes, but there are times when we really need to invest in our kids’ future, and that time is now. The Trust Fund creates 10,000 high-quality preschool places, so poor kids get a good start. In kindergarten through high school, the Trust Fund helps reduce class size, increase teacher pay – specifically those who become board certified or who teach in math and science. The Trust Fund also creates 32,000 more places in our community colleges and universities, so quality students are not turned away. The Trust Fund expands finanical aid and increases the scholarships from the top 15% to the top 30% of high school graduates, so they can afford to attend. Finally, the Trust Fund invests in university based research that will generate new businesses and jobs. It is time for us to stop just “talking the talk” about education being the key to our future and “walk the walk” by stepping up and investing a penny for education.

Supporters of so-called tort ‘reform’ bills in Congress claim that too many lawsuits have led to excessive costs and delays. They also charge that juries can no longer be trusted to render fair verdicts. But the truth belies these assertions. Tort ‘reform’ — really ‘deform’ — would gut our system’s ability to force wrongdoers to change their harmful conduct. For the whole story, check out the facts below:

Continue Reading The Truth About the Civil Justice System

The Wall Street Journal article “McDonald’s Callousness Was Real Issue, Jurors Say, In Case of Burned Woman” sheds some much-needed light on the McDonald’s coffee case.

When a law firm here found itself defending McDonald’s Corp. in a suit last year that claimed the company served dangerously hot coffee, it hired a law student to take temperatures at other local restaurants for comparison.

After dutifully slipping a thermometer into steaming cups and mugs all over the city, Danny Jarrett found that none came closer than about 20 degrees to the temperature at which McDonald’s coffee is poured, about 180 degrees.

Despite these findings, McDonald’s refused to settle out of court. Apparently, they didn’t think a jury would “punish a company for serving coffee the way customers like it.” And at first, that’s how jurists felt. Then they learned the facts.

What the jury didn’t realize initially was the severity of her burns. Told during the trial of Mrs. Liebeck’s seven days in the hospital and her skin grafts, and shown gruesome photographs, jurors began taking the matter more seriously. “It made me come home and tell my wife and daughters don’t drink coffee in the car, at least not hot,” says juror Jack Elliott.

Even more eye-opening was the revelation that McDonald’s had seen such injuries many times before. Company documents showed that in the past decade McDonald’s had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.

Continue Reading McDonald’s Callousness Was Real Issue, Jurors Say, In Case of Burned Woman

The Center for Justice & Democracy has published a story called MYTHBUSTER! THE MCDONALD’S COFFEE CASE” AND OTHER FICTIONS to tell the true story of the often misunderstood and misrepresented case of the 79-year-old woman who sued McDonalds after she received third-degree burns over 16 percent of her body from spilled coffee.

The “McDonald’s coffee” case. We have all heard it: a woman spills McDonald’s coffee, sues and gets $3 million. Here are the facts of this widely misreported and misunderstood case:

Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson’s car having purchased a cup of McDonald’s coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. However, McDonald’s refused to settle. The jury awarded Liebeck $200,000 in compensatory damages — reduced to $160,000 because the jury found her 20 percent at fault — and $2.7 million in punitive damages for McDonald’s callous conduct. (To put this in perspective, McDonald’s revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck’s attorney, S. Reed Morgan, the jury heard the following evidence in the case: Continue Reading THE “MCDONALD’S COFFEE CASE”

In a Pittsburgh Post-Gazette story Tomato supplier for Sheetz ceases operations, blames bad publicity, Joe Fahy and Jerome Sherman reported today that Coronet Foods, tomato distributer for sandwiches sold at Sheetz convenience stores, was ceasing operations today at its plant in Wheeling, West Virginia, leaving 220 workers without jobs. The company blames its going out of business on bad publicity from this summer’s salmonella outbreak that sickened more than 400 people, about 330 Pennsylvanians and another 80 people in nearby states.

Marler’s Seattle-based firm has filed three lawsuits as a result of the outbreak, all targeting Coronet. He said the company’s decision to go out of business would not affect the lawsuits.

“Coronet has enough insurance to resolve all the claims,” he said. “We’re hopeful we can eventually get through this, either by litigation or settlement.”

In a tragic story of how our food system fails families, Madeline Drexler’s article “What She Ate Almost Killed Her” for Good Housekeeping paints the painful tale of one little girl’s battle with death, all because she ate a hamburger.
On June 30, 2002, ConAgra recalled 354,200 pounds of ground beef. On July 16, Kristi Thacker purchased a five-pound package of ConAgra ground beef, packaged under a store-brand name, from her local grocery store. Three days later ConAgra expanded its recall, but Kristi Thacker didn’t hear about the recall until early September, about a month after she cooked the contaminated meat and fed it to her family. On August 14, five-year-old Savana Thacker got sick. Within a week, she was hospitalized with kidney and liver failure, complications of HUS caused by E. coli toxins poisoning her young body.

“Usually, I take things as they roll,” Kristi says now. “But this time, I literally felt ill.” Her husband, Shelby, got mad. “He wanted to know why, where, how. Who could have done this to us?”

The answer: our government’s lack of mandatory recall, and a voluntary recall process shrouded in secrecy.

For one, recalls are voluntary: No federal agency can order a manufacturer to pull a contaminated food product from the market, with the exception of infant formula; it can only request that the item be removed.

More alarming, the process is shrouded in secrecy. You may hear the name of the manufacturer mentioned on a TV report or read about it in the paper. But unless your local market chooses to identify itself, you won’t learn that the store has sold potentially lethal meat. It is no surprise, then, that only a small percentage of recalled foods is ever accounted for. The rest may have already been consumed or disposed of by the retailer or restaurant. Or it may wait in freezers in private homes.

We’ve seen these tragic cases in children before. A year before Savana got sick, two-year-old Kevin Kowalcyk died from a strain of E. coli that matched that from a recalled batch of meat manufactured by Green Bay Dressed Beef (which does business under the name American Foods Group). When his mother tried to find out where the firm had distributed the meat, she was stonewalled by state health officials.

Last July, with no other way to get the information, her attorney, William Marler, filed a lawsuit against American Foods Group and against the grocery store where Barbara regularly bought ground beef. “It is ridiculous that a grieving family would have to jump through the number of hoops we’ve had to, to find out what made our son sick,” Barbara says. “They don’t understand that when something like this happens to your child, you need to know.”

Until our government changes its system, kids will continue to die from the dangerous dishes served to them at family meals, school lunches, fast food establishments. We’ve seen kids with HUS sickened and killed from E. coli contaminated hamburger, juice, milk, spinach. It’s everywhere, and until the government sets higher standards, requires regular inspections and makes recalls mandatory, eating will continue to be a dangerous game for the American family.

Going to a BBQ? Bring your meat thermometer, The Essential Summer BBQ Accessory.

“The only safe hamburger is one cooked to 160 degrees,” says Nancy Donley, president of the nonprofit Safe Tables Our Priority, a food-safety advocacy group. “Research has shown color is not a reliable indicator.”

Donley learned about food safety the hard way seven years ago when her 6-year-old son died of HUS from eating an E. coli contaminated hamburger.

What worries Donley is that the E. coli situation may not have improved much, despite a number of well-publicized cases, including a 1993 outbreak linked to undercooked burgers from Jack in the Box restaurants and a spate of 1996 cases linked to Odwalla brand fruit juice.

Donley says that about half the cattle that come in for slaughter have some exposure to E. coli, and that ground meat samples tested by the federal government are turning up higher amounts of bacteria than before — although this may be because of better testing.

“The slaughterhouse market is relatively unchanged since Sinclair Lewis wrote The Jungle,” says Bill Marler, a Seattle attorney who has represented victims of some of the most notorious food poisoning cases of the last decade, including the Jack in the Box and Odwalla cases. He holds this opinion despite the fact that some plants have adopted new Hazard Analysis Critical Control Point (HACCP) quality-control procedures to keep contamination down.

“The concept is great,” Marler says. “You look at those particular areas with the potential for contamination and focus on it and deal with it. In reality, it still takes a commitment by the company.” Still, he adds, “I think you have got to have oversight in addition to HACCP. You can’t let your own industry regulate itself.”

As consumers, we can’t trust that what we’re eating is safe.

Proper cooking is of key importance, but it’s not the only thing. Raw meat should be handled very carefully, all the way from the grocery story to the plate.

Here at Marler Clark, we like to take swinging from the chandeliers to a whole new level, especially when the swinging is for a good cause like the BRIBE committee.

Like Tennessean Andrew Jackson’s drunken supporters swinging from chandeliers at the rowdy 1829 White House inauguration bash that signaled the defeat of the snobbish East Coast Whigs, Seattle’s rabble took over the 66th-floor law offices of Marler Clark on Wednesday night, January 28.

Bringing Real Integrity Back to Elections, or BRIBE, a committee founded by the Stranger news squad, hosted the shindig to raise money for bus ads that will publicize Mayor Greg Nickels’ heavy-handed efforts to influence new city council members Jean Godden and Tom Rasmussen. The Stranger broke the story about Nickels’ December 10 fundraiser, where the mayor rounded up nearly $10,000 to pay down Godden’s and Rasmussen’s campaign debts. Nickels erased nearly 20 percent of Godden’s debt. You’ve gotta wonder if Godden’s subsequent performance, running rubber-stamp confirmation hearings for Nickels’ Seattle City Light nominee, was influenced by the mayor’s generosity.

BRIBE’s bash was held in the same Bank of America Tower law office as Nickels’ fundraiser–attorney Bill Marler’s wood- paneled spread, with its wide-screen TVs and panoramic city views. (The fun-loving Marler offered the digs after we started bashing Nickels’ fundraiser and threatening to hold our own.)

In the article “A New Day In Court” published in CFO Magazine, Steven L. Mintz writes:

Awards often seem mysterious to Chris Campos, whose Teaneck, New Jersey based CPA firm, Campos & Stratis, investigates product- liability claims on behalf of insurance companies. He finds even favorable outcomes puzzling, when emotions in the jury room overwhelm, or at least temper, the facts. “You’re almost shooting craps,” he says, noting one Indiana case in which Campos was acting on behalf of an insurer suing a manufacturer to recover damages. His client claimed $2.8 million in damages caused by the manufacturer. “Instead of $2.8 million, they came back with $2.1 million. No one could explain why.”

The article goes on to talk about a popular defense attorney opinion that personal injury attorneys tug at jury’s heartstrings by pushing punitive awards as a way to “send a message back to the company.”
I said:

“I think that a lot of times, company executives are not really thinking of what cases are about,” Marler says. Instead, the defense often gripes about attention-grabbing attorneys who yank jurors’ heartstrings on the thinnest of pretenses. “They’ve got to get past that,” Marler declares of the company executives and the attorneys on their side. “Jack in the Box poisoned and killed children; a child who survived is going to have long-term kidney problems,” he declares, urging that companies accept even the harshest reality if it’s the truth. So the right track for companies, Marler says, is to face up to legitimate claims, but stand firm beyond that.

“Fight bogus claims to the death; it doesn’t benefit any of us to roll over,” he argues. “But when you’re caught with your pants down, settle.”

If you think it’s hard to get a fair trial in Texas, read Andrew Tilghman’s article “Lawsuit juries harder to find” published in the Houston Chronicle.

In a drug-injury lawsuit brought by a terminally ill woman against Wyeth-Ayerst Laboratories, which makes the controversial drug fen-phen, state District Judge Elizabeth Ray reportedly summoned a pool of 93 prospective jurors to her Houston court but still couldn’t find an impartial group of 12.

“They stood and said, `I hate lawsuits, I hate plaintiffs’ lawyers and I hate plaintiffs, and I don’t think they should even be at the courthouse.’ – Ray said. “I thought, `Uh-oh. I can’t have that guy because he can’t be fair.’ –

“To some people, this is jackpot justice,” said George Fleming, the attorney representing the terminally ill woman in Ray’s court last week. “People have listened to enough of the debate in Harris County to where they are taking views into the courtroom that are not consistent with the way the law is in Texas.”

Pain and suffering at the hands of drug companies, according to Tilghman’s article, is taking a back seat in consumer’s minds to how big money awards will drain their own pockets.

“Jurors are more sophisticated. They start to think: `How does this affect me? If I give this guy $1 million, that is going to affect my cost of living,’ – said Dallas lawyer Tom Fee, who handles civil defense.

It’s unfortunate that so much of the American public has been poisoned into believing it’s better to let corporations get away with injuring and killing our mothers, brothers and children rather than hold these companies financially responsible for their actions. Sadly, putting these companies in the public eye and tarnishing their images, as well as their bank accounts, through litigation is often the only way to get deadly drugs off the market.

I hope there never comes a day when I have to face a jury of tainted Americans who feel the corporations poisoning, often killing, children I represent in foodborne illness lawsuits are in the right by default. The families of these kids aren’t in it for the “jackpot,” and it’s difficult to put a price tag on a toddler’s lost kidneys or, worse, a child’s life.