An Open Letter To Roger Kern of Essex

by Categorized: Uncategorized Date:
Nader And some random attractive woman. Sylva Cancela photo.

Nader at the museum opening with some random attractive woman.
Gary Lewis photo.

I don’t know who you are, but your letter to the Courant today was so utterly wrongheaded that I will take the liberty of reprinting it in full before I discuss its flaws.

My reaction to the front-page article “Safe For Viewing” [Sept. 27] is one of both amusement and bewilderment. It must be a slow news day when such a non-event as dedicating a museum of tort law rates half of the front page, in comparison to such minor events as the pope’s visit.

While Ralph Nader may be the media’s darling gadfly, he might be more aptly described as the Don Quixote of the consumer movement, tilting at windmills in the name of the hapless consumer.

Really, an exhibit “honoring” the infamous McDonald’s coffee cup case? If there was ever a case inappropriately rewarding bad consumer judgment, this was it. Who would’ve known that hot coffee could scald you if you held it between your legs while driving?

There is a reason this museum was not hosted by a major city, the same reason the Museum of Law in Chicago closed in 2011: Nobody cares.

Roger Kern, Essex

Let’s begin with the most obvious thing. You haven’t taken five minutes to acquaint yourself with the facts of Liebeck v. McDonald’s. You’ve just glugged down whatever swill was poured into your mouth by Limbaugh and Fox.

So: Stella Liebeck, 79, was not driving. She was in the passenger’s seat. Her grandson, the driver, had come to a full stop so that she could add cream and sugar to her coffee. She placed the cup between her knees and removed the lid; the contents of the cup spilled onto her. Here is a description of her injuries.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting [and debridement].

Let’s pause there and say, Mr. Kern, that whatever you think about this case, the term often used for it, “frivolous litigation,” does not apply.

But let’s go a little further. Liebeck attempted to settle the whole thing for $20,000, and McDonald’s refused. Bad idea. The resulting trial included, of course, discovery. McDonald’s was forced to cough up documents showing more than 700 claims involving burns from Mickey D’s java. These included other third degree burns.

Why did so many people have this problem? Other internal McDonald’s documents showed that the chain made a special point of keeping its coffee very hot.

McDonalds also said during discovery that, based on a consultant’s advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste …Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

The other widely publicized part of this case that isn’t true involves the damages. What most people heard about, at the time, is this:

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales.

What they didn’t hear was this:

The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful.

And in fact nobody knows the ultimate number, because the case was settled in secret. Anyway, the one “fact” that you “knew” about this case — that Stella Liebeck was driving with a cup of coffee between her knees — is wrong.

If you get interested, there’s an entire documentary about the case and its relation to tort law.

Now, as to Nader himself, the legacy of the “darling gadfly” who spends his life “tilting at windmills, is better described here:

More than any other single person, Ralph Nader is responsible for the existence of automobiles that have seat belts, padded dashboards, air bags, non-impaling steering columns, and gas tanks that don’t readily explode when the car gets rear-ended. He is therefore responsible for the existence of some millions of drivers and passengers who would otherwise be dead. Because of Nader, baby foods are no longer spiked with MSG, kids’ pajamas no longer catch fire, tap water is safer to drink than it used to be, diseased meat can no longer be sold with impunity, and dental patients getting their teeth x-rayed wear lead aprons to protect their bodies from dangerous zaps. It is Nader’s doing, more than anyone else’s, that the federal bureaucracy includes an Environmental Protection Agency, an Occupational Safety and Health Administration, and a Consumer Product Safety Commission, all of which have done valuable work in the past and, with luck, may be allowed to do such work again someday. He is the man to thank for the fact that the Freedom of Information Act is a powerful instrument of democratic transparency and accountability. He is the founder of an amazing array of agile, sharp-elbowed research and lobbying organizations that have prodded governments at all levels toward constructive action in areas ranging from insurance rates to nuclear safety.

Maybe you don’t like some of those things, Mr. Kern, but most of them are pretty reasonable. The great thing about seatbelts and padded dashboards is that they work for liberals and conservatives.Take a drive up to the tort museum. It’ll be a much safer drive, thanks to Nader.

Have a nice day.






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