The Abnormal Use Review of the ABA Joint CLE Seminar in Colorado

This past weekend, the ABA Section of Litigation once again held a successful joint CLE seminar of the Environmental, Mass Torts and Products Liability Committees. The destination was certainly a great attraction. Who can beat Aspen, Colorado and its beautiful slopes (not to mention that the Winter X Games 15 were held this very same weekend!). The conference featured broad and familiar topics (Medicare Secondary Payer reporting and repayment obligations – now a staple at all conferences) but also specific products liability updates.

The Products Liability Committee held two break-out sessions, the first of which was devoted to medical monitoring damages. The panel presentation on this topic was moderated by Rudy Perrino of Fulbright & Jaworski, L.L.P., and included speakers Scott DeVries of Winston & Strawn, L.L.P. (to provide the defense perspective), and Andrew J. “Duke” Maloney, III, of Kreindler & Kreindler, L.L.P. (to provide the plaintiff’s perspective). Whereas medical monitoring damages have not really been addressed in South Carolina, they have come into play in many other states, with the current majority refusing to recognize them. In essence, medical monitoring damages are those that could be awarded to a plaintiff seeking to monitor the long-term effects of an injury or residual effects of exposure to chemicals, radiation or pharmaceuticals, resulting in an increased risk of developing disease or injury in the future. The issue presents some challenges for both parties to litigation and the courts, particularly in the context of alleged toxic exposure that initially does not result in evident injury.

From a defense perspective, the number of plaintiffs could become quite large, imposing a heavy expense over an extended period of time. Further, if a defendant agrees to pay for long-term medical monitoring damages, the defendant is essentially building an apparatus to allow a plaintiff to potentially come back for additional damages if or when the plaintiff develops some sort of disease. As the plaintiff will see it, the defendant has been paying to monitor him or her for disease and, if they indeed develop disease (regardless of whether it was actually caused by the prior exposure versus some alternative cause or whether that plaintiff would have developed the disease without the exposure), that plaintiff has a basis to come back to the defendant. Moreover, a defendant does not want to be required to pay for regular medical care and physical exams that an individual should be seeking anyway. Additionally, there are the side effects that could develop from the testing itself (such as the increased risk of developing cancer from having a yearly MRI for instance, if such a procedure were a part of the recommended monitoring).

From the plaintiff’s perspective, a tort has already occurred, and the plaintiff deserves to be monitored for future injury, should that plaintiff choose to do so. If there is an increased risk of disease as a result of the testing itself, that risk should be one decided by the plaintiff. Additionally, the plaintiffs’ bar suggests that their clients still must prove that the disease that has developed was, in fact, caused by the prior alleged toxic exposure. Of course, the concession that causation will still be on the table does not alleviate the concerns of the defense bar. The very fact that a plaintiff has previously been awarded medical monitoring damages to detect the development of the very type of condition caused by the prior exposure bestows upon the plaintiff some type of litigation advantage. Indeed, it would be nearly impossible for a defendant to take the position that the disease is idiopathic in light of the past monitoring for that very condition.

The issue is bound to present difficult issues for the courts. For instance, what if a state demands evidence of physical injury in order for a plaintiff to receive an award of medical monitoring damages, an expert establishes that there were subcellular changes that will make the plaintiff more susceptible of developing cancer (even though there is no evident injury at present), and the plaintiff later develops cancer? A defendant, understandably enough, is likely to argue that the plaintiff is barred by the statute of limitations. The plaintiff, through an expert, already made the case for the injury in order to obtain the medical monitoring damages in the first place. Then there is the issue of what care should comprise the medical monitoring and who should conduct it. Medical professionals often don’t agree on what tests should be performed to check for various disease and how often they should be done. Moreover, the plaintiff’s and defense attorneys are very likely not going to trust the other side to select the care providers.

Overall, the issues surrounding medical monitoring made for a very interesting debate. The presenters believe that the issue will be a developing one that litigators will eventually encounter, and the plaintiff’s bar, at least, believes that the trend will be to allow such damages. A prime example is the recent federal legislation to allow medical care for those who worked at Ground Zero following the September 11 terrorist attacks. Whereas federal courts have rejected medical monitoring claims absent physical injury, the legislation circumvented that common law in handling this high-profile issue. We will be interested to watch the development of this issue over the next few years and see if the prediction of an increase in such awards comes to fruition.

We could not close out this report without mentioning friend of the blog James Beck, one of the authors of the Drug and Device Law Blog. He spoke at this seminar on new developments in litigation, particularly on the American Law Institute’s new Principles of the Law of Aggregate Litigation. He has a commanding presence as a speaker and gave an enjoyable presentation.

Friday Links

  • Depicted above is the cover of Green Lantern #11, published way, way back in 1962. It features a story entitled “The Strange Trial of Green Lantern,” which is an odd affair indeed. It’s nice to know that the High Court of the Green Lanterns of the Universe doesn’t just find criminal defendants to be not guilty of the charges at issue; they go so far as to pronounce the defendant innocent of the charges. However, we think that Earth’s Green Lantern, the apparent defendant in this case, should have just pleaded guilty in the first place if his response to the acquittal is “I’m Guilty! You must strip me of my super-powers!” Extraterrestrial judicial economy is not served by forcing an alien tribunal to go through a trial if you’re just going to plead guilty at the end of the process, anyway.

  • We’ve arrived! We here at Abnormal Use must be doing something right if a Plaintiff’s friendly blog like The Pop Tort sees fit to bash our commentary of “Hot Coffee,” the documentary by Plaintiff’s lawyer Susan Saladoff which profiles the famous Stella Liebeck case and advocates civil justice reform to make it easier for Plaintiffs to recover. The Pop Tort‘s philippic, written under the pseudonym “Joe Consumer,” calls our writer Nick Farr’s story a “sorry attempt to slam” the film and part of “a dirty corporate disinformation campaign” all concocted by a “corporate lawyer” attempting to relitigate the famed case. Wow! Nick is planning his own retort to set the record straight which we will publish next week. In the meantime, we thank the mysterious “Joe Consumer” for also linking our “comprehensive” FAQ on the Liebeck case, published here the day after our film comment.
  • This is not a copyright and trademark blog, but we can’t resist sharing WordSpy‘s definition of the term “copyfighter,” which is defined as “[a] person who opposes copyright laws and practices that he or she perceives to be unfair.” If you’re not familiar with the site, WordSpy is dedicated to defining newly coined words and clever turns of phrase in the media.
  • In this video, we learn that Darth Vader is quite adept at contract modification. We pray he doesn’t alter the deal again. (Hat tip: ContractsProf Blog).
  • We congratulate the Honorable Henry F. Floyd of the U.S. District Court for the District of South Carolina for his appointment by President Obama to the 4th Circuit Court of Appeals. See the news coverage of the appointment here.

Abnormal Use at the ABA Joint CLE Seminar in Colorado

We here at Abnormal Use are sending one of our own – Stephanie Flynn – to this year’s Joint CLE Seminar for the Environmental, Mass Torts and Products Liability Committees held by the ABA’s Section of Litigation. This year, the Joint CLE Seminar is being held at the Silvertree Hotel Conference Center in Snowmass Village, Colorado, one of two favorite snowy destinations for this annual conference. The conference begins tonight with a welcome reception for all attendees and extends through Saturday with substantive presentations by all of the committees.

As we discovered last year, this conference presents great opportunities for networking and becoming more involved in these worthwhile committees. In particular, we are looking forward to the break-out sessions for the Products Liability Committee, which will include a program devoted to understanding medical monitoring damages. This year’s discussion will include the state of the law, scientific understanding of disease processes, availability of testing for early detection, and risk/benefit analyses that can be employed by a court tasked with determining whether to award such damages. Then, there is a most informative Products Liability Year in Review, a presentation that we very much enjoyed last year. This presents a great opportunity to review the good, the bad, and the ugly from 2010 when it comes to products liability law.

If any of you, our dear readers, are also attending, please say hello! We would love the opportunity to get to know you. As for those of you who will not be able to join us in Colorado this year, keep an eye out for updates from us on the products liability presentations.

One Not So Great Burger Meat Recalled

Recently, the U.S. Department of Agriculture issued a news release regarding the recall of 226,400 pounds of ground beef from a company called One Great Burger out of Elizabeth, New Jersey. Customers had complained that the meat was discolored and emitted a bad odor.

According to the release, the company had repackaged and redistributed meat that had been returned to them. This immediately reminded us here at Abnormal Use of the 1992 ABC “PrimeTime Live” television show, in which undercover reporters went inside Food Lion and discovered the grocery chain had been going to rather drastic lengths to extend the life of some bad meat. Apparently, Food Lion employees had been grinding out-of-date meat with fresh meat, redating meat that had passed its expiration date, and even using bleach to mask rank odors from expired meat. (Side note: Food Lion sued ABC over the story on theories of fraud, breach of the duty of loyalty, trespass, and unfair trade practices and a decision was reported in the case Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)).
So, you’d think that One Great Burger may have had some clue that re-dating meat is not a good idea, or great for your company’s image.
This recall is a good reminder that when it comes to food recalls, the USDA has three recall classifications, which focus on the likelihood and seriousness of negative health effects from the item being recalled, and are defined as follows:
Class I: “This is a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death;”
Class II: “This is a health hazard situation where there is a remote probability of adverse health consequences from the use of the product;” and
Class III: This is a situation where the use of the product will not cause adverse health consequences.”
The One Great Burger recall is classified by the USDA as a Class II recall.

The Stella Liebeck McDonald’s Hot Coffee Case FAQ

First entering the public consciousness in 1994, the Stella Liebeck trial, known as the McDonald’s hot coffee case, has become such a fixture of litigation lore that many are unaware of the basic facts of the case, or even where and when it was tried. Litigated and reported upon before the rise of the Internet, much of what appears online about the case is the worst sort of unsourced speculation and conjecture. Our friends at Overlawyered have done an excellent job over the years dispelling the various myths about the case, including those that have arisen suggesting that the industry standard was to serve coffee at temperatures lower than that of McDonald’s. In an effort to publish some of the basic facts of the case, we here at Abnormal Use have created the following FAQ file regarding the matter. In so doing, we have relied solely upon the original pleadings and motions in the case and some contemporary news coverage.

On February 27, 1992, seventy-nine year old department store clerk Stella Liebeck was in the passenger seat of her grandson’s Ford Probe when she ordered a 49 cent cup of coffee at the drive through of a McDonald’s franchise in Albuquerque, New Mexico. Shortly thereafter, she spilled the coffee into her lap and sustained a series of burns. Her original state court lawsuit was filed in March of 1993, tried in August of 1994, and ultimately settled for an undisclosed sum in late 1994. Media coverage of the jury’s original verdict was, shall we say, immense.

Where was the case filed and tried?

The Second Judicial District Court
in Bernalillo County, New Mexico.

What did the complaint allege?

Filed on October 5, 1993 the Plaintiff’s Amended Complaint recited the following allegations:

A. The coffee purchased by her on 2/27/92 was unreasonably dangerous because it was excessively hot and Defendants are liable to her for the physical and mental harm which it caused at the time of its sale and consumption on 2/27/92.

B. The product in question, coffee, was and is routinely sold and manufactured by the Defendants, and it reached Plaintiff in the same condition as it was at the time of the sale; further, Plaintiff in no way is guilty of any fault and the Defendants are strictly liable to Plaintiff under the Restatement of Torts Second, §402(a);

C. The coffee was defectively manufactured, served in a container that had design defects, and the coffee itself was manufactured defectively due to excessive heat; further, the container that it was sold in had no warnings, or had a lack of warnings, rendering the product defectively marketed;

D. The producing cause of Stella Liebeck’s injuries was the exclusive fault of the Defendants;

E. At all material times Defendants were aware of the dangerous condition of the coffee inherent in serving it at the temperature at which it was sold; they knew of the likely consequences of such acts; they knew of the risks involved and acted with a conscious indifference and willful and wanton disregard for the safety of Stella Liebeck and any other consumer of the product;

F. Defendants are expert manufacturers, distributors, and sellers of coffee and had a duty to test and inspect the product for unreasonably dangerous conditions, which they either failed to do, or alternatively, which they did negligently, or in the alternative, did with malice with complete disregard for the dangers inherent in selling coffee at the temperature at which it was sold causing a high probability of severe burns in connection with the sale of the product.

What damages were alleged in the amended complaint?

As set forth in the Amended Complaint, the damages purportedly sustained and sought were:

VI.

As a result of spillage of the defective coffee, Plaintiff sustained burns on her perineum, upper inner thighs, buttocks, genital areas, and lower abdominal wall including the left groin. The burns consisted of both second and third degree burns and were of such severity as to require debridement and skin grafting, causing enormous conscious pain and suffering, mental anguish, and loss of life’s enjoyment, for which she seeks damages. The foregoing treatment caused Plaintiff to incur medical expenses in the past, at the present, and into the reasonable future as follows: (a) past medical expenses: approximately $10,500.00; (b) future medical expenses: approximately $2,500.00. Total: $12,500.00.

VII.

Plaintiff Stella Liebeck was born on XX/XX/12 and was 79 years old at the time of the injury. At the time in question Plaintiff was a healthy, robust, and gainfully employed person, who worked as a sales clerk and earned in excess of $5,000.00 per year; Stella Liebeck has incurred lost earnings of approximately $5,000.00.

IX.

Further, as a direct result of the fault, or in the alternative, the negligence of the Defendants, Plaintiff has sustained severe disfigurement and permanent scarring to her body, which she claims has damaged her in an amount of not less than $100,000.

X.

As a result of the severe and painful burns described herein, Plaintiff sues the Defendants in the amount of $125,000 for physical pain, mental pain and anguish, and loss of life’s enjoyment during the pendency of treatment including skin grafting, debridement, and general recovery from painful scarring, as well as pain and discomfort associated with drawn and tight skin in the scarred areas, which pain and discomfort persists at the present and will persist into the future.

XI.

Plaintiff comes now and sues McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. for gross negligence, for willful and wanton disregrad of the rights, safety, and welfare of Stella Liebeck and any other consumers that purchase coffee in the defective state in which it is sold by Defendants, and for the marketing defect of no warning, or in the alternative, insufficient warning, because McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. fully know of and are aware of innumerable burn cases caused by the fault, or in the alternative, negligence of their operations in the manufacture, sale, and marketing of extremely hot coffee. For this, Plaintiff comes now and sues in the amount of three times compensatory damages for punitive damages.

What were McDonald’s defenses?

In its Answer to the Amended Complaint, filed on September 22, 1993, McDonald’s asserted the following affirmative defenses:

SECOND DEFENSE

If the Plaintiff was injured and damaged as alleged, then her injuries and damages were the result of her own negligence or of the negligence of a third person or party for whom this Defendant may not be held responsible.

THIRD DEFENSE

If the Plaintiff was injured and damaged as alleged, which is specifically denied, then her injuries or damages were the result of an accident or inadvertence which was not the fault or responsibility of this Defendant.

FOURTH DEFENSE

Plaintiff has failed to mitigate her damages.

FIFTH DEFENSE

Plaintiff should be required to make a prima facie showing of entitlement to punitive damages before any evidence hearing thereupon is adduced before a jury.

SIXTH DEFENSE

Plaintiff’s claims for excessively hot coffee fail to state a claim for which this Court might grant relief.

SEVENTH DEFENSE

At all material times, these Defendants adhered to the applicable standard of care and engaged in reasonable conduct.

Who was sued?

In the original complaint, which was filed on March 21, 1993, Plaintiff only sued P.T.S., Inc., a New Mexico corporation and the local franchise operator. In the amended complaint, however, the McDonald’s corporation was added as a defendant. Ultimately, P.T.S., Inc. was dismissed as a defendant prior to the matter being submitted to the jury.

Where was the McDonald’s franchise in question?

The franchise was located at 5001 Gibson Blvd., S.E., Albuquerque, New Mexico 87108. According to Google Maps, there’s still a McDonald’s franchise at that location: ‎


View Larger Map

Is there a reported opinion?

Yes. The trial court’s original order entering the jury verdict is available on Westlaw as Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. CV-93-02419, 1995 WL 360309, (In the Second Judicial District Court of New Mexico, Bernalillo County, August 14, 1994). However, there is no reported appellate opinion due to a confidential settlement several months after the verdict.

Who was the judge?

The Honorable Robert Hayes Scott was the state court district judge who presided over the case. He is now a United States Magistrate Judge for the U.S. District Court for the District of New Mexico in Albuquerque. He was initially appointed to the position in 2003.

Who were the Plaintiff’s attorneys?

The lead Plaintiff’s attorney was S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas. Serving as counsel with him were Jerry R. McKenney of Houston, Texas (who at the time of the filing of the original complaint, had been licensed just two years) and local counsel Kenneth R. Wagner of Kenneth R. Wagner & Associates, P.A. (now of Wagner Ford Law, P.A.) in Albuquerque, New Mexico.

Who were the defense attorneys?

Bruce Hall, Tracy McGee, Susan S. Throckmorton, and Charles K. Purcell, all of the Rodey, Dickason, Sloan, Akin, & Robb, P.A. firm in Albuquerque, New Mexico. Now the managing partner of the Albuquerque office of Jackson Lewis, Danny W. Jarrett was then a law clerk at the Rodey firm who executed a summary judgment affidavit setting forth coffee temperature measurements he took at six local restaurants as a part of the defense case.

What were some of the pretrial motions filed in the case?

On January 21, 1994, the defendants moved for summary judgment. The motion was denied. On July 29, 1994, a hearing was conducted on Plaintiff’s Motion for Partial Summary Judgment. The parties stipulated as to causation of the injuries – that the burns were caused by the coffee. On July 29, 1994, in a letter decision, Judge Scott denied Plaintiff’s motion as to liability.

What was the basis of the McDonald’s motion for summary judgment?

In support of its motion for summary judgment, McDonald’s alleged the following as “undisputed material facts” upon which it based its motion:

1. Plaintiff Stella Liebeck was a passenger in a vehicle which proceeded through the drive-through window of a McDonald’s Restaurant (franchisee P.T.S., Inc.) located at 5001 Gibson, S.E., in Albuquerque, New Mexico, on or about February 27, 1992. Complaint for Damages, Paragraph III.

2. At the time in question, Plaintiff was 79 years old. Complaint for Damages, Paragraph VI.

3. Subsequent to purchasing the coffee, Plaintiff spilled it on herself, sustaining second and third degree burns to her upper inner thighs, buttocks, and other areas of her body. Complaint for Damages, Paragraph VI.

4. Plaintiff has alleged that the coffee was “excessively hot” and “defective” because of its high temperature. Plaintiff’s Complaint, Paragraph IV.

5. The second and third degree burns which Ms. Liebeck sustained could have been sustained at temperatures as low as 130 Fahrenheit. Aff. of Turner M. Osler, M.D., Para. 17.

6. The fact that the coffee that Ms. Liebeck spilled on herself may have been slightly or even significantly hotter than 130° Fahrenheit does not mean that her injuries were worse or more extended than they would have been otherwise. Aff. of Turner M. Osler, M.D., Para. 18.

7. Ms. Liebeck’s age may have caused her injuries to have been worse than they might have been in a younger individual, as the skin of an older person is thinner and heals less easily than the skin of a younger individual; however, even a young adult could have sustained third degree burns after spilling liquid at a temperature of as low as 130° on herself. Aff. of Turner M. Osler, M.D., Para. 19.

8. Unless Ms. Liebeck removed all of her clothing immediately, the clothing may have served to hold in the heat of the spilled liquid, and this may have aggravated the nature and extent of her injury; however, to a reasonable degree of medical probability, she would nevertheless have sustained third degree burns as a result of the coffee spilled. Aff. of Turner M. Osler, M.D., Para. 20.

9. A survey of six (6) fast food or restaurant establishments and two (2) private residences was conducted in September 1993 by Danny Jarrett. Aff. of Danny Jarrett, passim.

10. As part of this survey, Mr. Jarrett used a standard food thermometer and measured the temperature of coffee brewed and maintained at these locations. Aff. of Danny Jarrett, Paras. 3 & 4.

11. Mr. Jarrett’s measurements of coffee were taken when it was first served to him, after approximately 15 minutes, and after approximately 30 minutes. Aff. of Danny Jarrett, passim.

12. The coffee was served to Mr. Jarrett in containers ranging from styrofoam cups to ceramic mugs. Aff. of Danny Jarrett, passim.

13. At no location did Mr. Jarrett record the temperature of freshly served coffee below 130°. Aff. of Danny Jarrett, passim.

After citing several cases in support of its position, McDonald’s argued:

Defendants contend that Ms. Liebeck’s burns were not the result of serving excessively hot coffee, as other restaurants in this community have been demonstrated to serve coffee at temperatures which, for the sake of argument, might be lower than those served at the McDonald’s in question, but which also were high enough temperatures to have still caused the type of injuries and burns that Ms. Liebeck sustained.

It is unclear from the materials currently available whether McDonald’s submitted a memorandum in support of its motion.

What was the Plaintiff’s argument in her summary judgment motion?

In her motion for summary judgment, Plaintiff, after relying upon McDonald’s responses to requests for admission and the deposition testimony of McDonald’s Quality Assurance Group Manager of Administration Christopher D. Appleton, argued:

Plaintiff contends that Defendants have admitted, either through testimony or requests for admission, all elements of products liability and breach of warranty sufficient to prove her case on liability and causation. Moreover, the lack of an adequate warning makes the product defective. The lack of an adequate warning has been admitted by the Defendants. Therefore the product was defective. The defective product caused the burns to Ms. Liebeck’s body. There are no material issues of fact remaining for decision on Plaintiff’s claims of product defect with injuries caused thereby.

Similarly, the Defendants have admitted that the product, when sold, was not fit for its intended purpose, consumption. Accordingly, there no longer exists any material question of fact on the question of whether Defendants breached the implied warranty of fitness for a particular purpose; Defendants themselves have admitted the breach.

(Record citations omitted).

When did the case go to trial?

August 8-12 and 15-17, 1994.

Who were the testifying experts?

The defense experts were as follows:

Christopher Appleton (McDonald’s Manager of Quality Assurance). Viewed as an ineffective witness, Mr. Appleton apparently admitted that he was aware of the risk of hot coffee and had no plans to reduce the temperature. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). Further, Mr. Appleton stated that the number of reported burns from McDonald’s coffee in relation to the total number of cups sold was not high enough to justify the modification of the serving temperature.

Dr. P. Robert Knaff (human factors engineer). Dr. Knaff testified that the number of prior coffee burn victims was statistically trivial in comparison to the number of cups sold.

Dr. Turner M. Osler (medical expert). Dr. Osler submitted an affidavit, stating that in his opinion, Ms. Liebeck would have suffered the same extent of burns had she been served coffee at a temperature as low as 130 degrees.

The Plaintiff’s experts were as follows:

Dr. David Arredondo (Mrs. Liebeck’s treating physician). Dr. Arredondo testified as to the extent of Mrs. Liebeck’s injuries. Mrs. Liebeck suffered burns to approximately six percent of her body – 90 percent of which were third-degree burns. Further, he testified that elderly people are more susceptible to burns than younger people due to the thinning of the skin that occurs with age.

Dr. Charles Baxter (burn specialist). Dr. Baxter offered his opinion at trial that coffee served at 180 degrees was excessive and could not be consumed at that temperature. Dr. Baxter opined that the optimal temperature range to serve coffee was between 155 and 160 degrees. (Historical footnote: He operated on President Kennedy and Governor Connally on November 22, 1963).

Dr. Kenneth Diller (thermodynamicist). At his deposition, Dr. Diller testified that, in his opinion, McDonald’s was serving an unreasonably dangerous product when it sold its consumers hot coffee in styrofoam cups without warning of the possibility of sustaining burns.

Dr. Lila F. Laux (psychologist). Dr. Laux testified that the addition of a warning to the McDonald’s coffee would have influenced Mrs. Liebeck’s behavior.

Melissa Patterson (economist). In calculating hedonic damages of $660,900 from the date of Mrs. Liebeck’s injury, Ms. Patterson assumed that Ms. Liebeck lost all enjoyment of life the moment she was burned and would continue to have no enjoyment until her death.

What was the original verdict?

The jury found for the Plaintiff on her claims of product defect, breach of implied warranty, and breach of the implied warranty of fitness for a particular purpose. The jury also found that Plaintiff was twenty percent at fault.

What were the damages awarded?

After deliberating four hours, the six man, six woman jury initially awarded $200,000 in compensatory damages, which was reduced by the judge by $40,000 due to the finding of comparative fault. The jury also awarded $2.7 million in punitive damages.

What became of the verdict?

McDonald’s filed post-trial motions. In late August or early September 1994, Judge Scott appointed retired New Mexico Supreme Court Justice William F. Riordan to mediate the dispute and ordered the parties to “make a good faith effort to resolve and completely settle all pending issues.” (“Conference Ordered on Spilled Coffee,” Associated Press, Tulsa World, September 2, 1994, available at 1994 WLNR 5089128). On September 16, 1994, Judge Scott denied McDonald’s motion for new trial and motion for judgment notwithstanding the verdict, noting that “the compensatory award of $160,000 shall not be disturbed.” However, in that same order, the court noted as follows: “The award of punitive damages of 2.7 million dollars was excessive, as a matter of law. Accordingly, a new trial shall be granted on all issues unless Plaintiff accepts — by written notice to the Court within 25 days of the date of entry of this Order – a remittitur of the punitive damages award as hereby directed by the Court. The remittitur, if accepted, shall reduce the punitive damages award to $480,000, which represents the trebling of the $160,000 award of compensatory damages.” In so doing, Judge Scott commented that the new punitive amount was justified due to “‘willful, wanton, reckless and what the court finds was callous” conduct on the part of McDonald’s. (Associated Press, “Ruling Eases Heat on McDonald’s; Restaurant Will Still Appeal Coffee Verdict,” Wichita Eagle, September 15, 1994, available at 1994 WLNR 823624). At that time, McDonald’s spokesperson Ann Connolly told the Nations’ Restaurant News that “[s]afety is always our first concern, and that is why we have ‘hot contents’ printed as a reminder on our cups. We knew the initial damages awarded were excessive and unjustified, and yesterday the judge acknowledged that and agreed. But we feel they are still excessive, and we will appeal this decision.” “(Judge slashes McD settlement to $480,000: slams chain as ‘callous’ but reduces $2.9M jury decision,” Nation’s Restaurant News, September 26, 1994, available at 1994 WLNR 5313844). In early October of 1994, the New Mexico Supreme Court denied Liebeck’s appeal of the reduction of the punitive award. At that time, McKenney was quoted as saying that “[a] decision has to be made whether to seek a new trial or accept the reduced amount.” (“Court Refuses to Raise Award for Coffee Spill,” The Chicago Tribune, October 14, 1994, available at 1994 WLNR 4335536). On November 3, 1994, Judge Scott denied Plaintiff’s October 21, 1994 motion for reconsideration of the remittitur order. Finally, on November 28, 1994, the court vacated the judgment, presumably due to the confidential settlement which was announced in the media the following week.

What efforts were made to settle the matter?

Liebeck initially approached McDonald’s with a demand of $20,000 to cover her medical bills, future medical expenses, and lost income. McDonald’s countered with an offer of $800. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). As trial approached, Liebeck’s settlement demand increased to approximately $300,000. (Id.). After denying McDonald’s motion for summary judgment, the trial judge ordered the parties to attend mediation. During the session, the mediator recommended that McDonald’s accept a $225,000 offer. (Id.). McDonald’s declined. Following the jury verdict and the trial court’s reduction of the punitive damages award, both parties appealed. Before the case was heard on appeal, the parties settled out-of-court for an undisclosed sum. When the settlement was announced, Wagner claimed that “McDonald’s now (is putting) warnings on its coffees as have some of the other fast food chains. That was her principal objective, to make things safe. Have you ever had McDonald’s coffee? It’s hot, hot hot. It’s as hot as the water in your radiator.” (“McDonald’s settles suit over burns from coffee,” The Houston Chronicle, December 2, 1994, available at 1994 WLNR 5009816).

What was the immediate reaction to the verdict?

The public immediately reacted to the size of the verdict; the consensus was that it was excessive in light of the perceived contributory negligence of the Plaintiff. The media reaction sent the Plaintiff’s bar into damage control mode. On October 24, 1994, The National Law Journal published a letter to the editor from Morgan, who noted as follows:

There has been a great uproar from people displeased at the size of the verdict, who see it as an example of the product of a runaway jury and a plaintiff who will not accept responsibility for her actions.

McDonald’s Corp. sold its coffee at 180-190 degrees Fahrenheit by corporate specification. McDonald’s coffee, if spilled, could cause full-thickness burns (third degree to the muscle/fatty tissue layer) in two to seven seconds.

McDonald’s knew about this unacceptable risk for more than 10 years; it was brought to the company’s attention by other lawsuits (more than 700 reported claims from 1982 to 1992). The company’s witnesses testified that it did not intend to turn down the heat. McDonald’s generates revenues in excess of $1.3 million daily from the sale of coffee alone.

Ms. Liebeck’s treating physician testified that this was one of the worst scald burns he had ever seen. Other expert witnesses termed the risk of harm from McDonald’s coffee to be unacceptable.

Most consumers don’t know that coffee this hot causes such injuries. Nor do they know McDonald’s made a practice of serving its coffee this hot.

The jury applied the law of punitive damages to deter McDonald’s and other similarly situated corporations from exposing consumers to this risk. It imposed a penalty of two days’ revenue from coffee sales, or $2.7 million, for willfully ignoring the safety of customers who feed the McDonald’s money tree. The system has numerous methods of overturning a verdict that is excessive.

Why should we tolerate corporate irresponsibility? What’s wrong with penalizing irresponsible behavior that injures consumers?

The news media, the day after the verdict, established that coffee at the McDonald’s in Albuquerque is now sold at 158 degrees. At that temperature, it would take about 60 seconds to cause third-degree burns. Mission accomplished.

(Morgan, Reed. “Verdict Against McDonald’s Is Fully Justified,” The National Law Journal, October 24, 1994, available at 10/24/94 Nat’l L.J. A20).

Morgan had similar letters published in both The Legal Times and the Texas Lawyer. (Reed Morgan, Reed. “McDonald’s Burned Itself,” The Legal Times, September 19, 1994, available at 1994 WLNR 5431838 and Morgan, Reed, “McDonald’s Burned Itself; What’s Wrong With Penalizing Corporate Irresponsibility That Burns And May Kill Our Consumers?,” Texas Lawyer, September 12, 1994, available at 1994 WLNR 5430539).

What was the substance of the McDonald’s post-trial arguments?

In its memorandum in support of its post trial motions, filed on August 29, 1994, McDonald’s argued as follows:

There can be no doubt that potable coffee is, by its very nature, hot. The evidence in this case establishes that there is nothing unique about McDonald’s coffee in this regard: although billions of cups of coffee are consumed without incident every year, all restaurateurs serve coffee at temperatures high enough to cause third-degree burns under certain conditions. Indeed, the courts of New Mexico have cited coffee spillage (not service) as a classic example of a negligent act, presumably because this sort of accident so often has consequences serious enough to merit the law’s attention. The scalding potential of coffee is so well understood that the courts almost take it for granted.

(citations omitted; emphasis in original).

The Wall Street Journal quoted one McDonald’s state court motion as saying: “First-person accounts by sundry women whose nether regions have been scorched by McDonald’s coffee might well be worthy of Oprah. But they have no place in a court of law.” (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994).

What became of Stella Liebeck?

Born in December of 1912, she died on August 5, 2004 at age 91.

How has popular culture referenced the case?

One of the most famous pop culture parodies of the case is the episode of “Seinfeld” in which Kramer (Michael Richards), burned by a cup of hot coffee, hired flamboyant Plaintiff’s attorney Jackie Chiles (Phil Morris). Plaintiff’s attorney Susan Saladoff recently released Hot Coffee, a documentary on the case and an analysis of the civil justice system, about which we wrote here.

[This FAQ was researched and prepared by Jim Dedman and Nick Farr.]

Spill the Beans: The Truth Behind Susan Saladoff’s "Hot Coffee" Documentary

Everyone knows the tale of the New Mexico jury that awarded an octogenarian Plaintiff nearly $3 million after she spilled a cup of McDonald’s coffee into her lap at the drive through. In 1994, that verdict became the talk of the nation and the poster child for tort reform. Since that time, the case has become the legal community’s most infamous urban legend. However, most Americans probably wouldn’t recognize Plaintiff Stella Liebeck’s name; fewer realize that the large award of damages was ultimately reduced to approximately $800,000 by the trial court. The story of the hot coffee case – much like a childhood game of “telephone” – has been told and re-told so many times that the line between truth and myth has become indistinguishable.

Tonight, at the 2011 Sundance Film Festival, filmmaker Susan Saladoff premieres her new film, Hot Coffee, a documentary on the Liebeck case and the status of America’s civil justice system. But who is Susan Saladoff, and is her documentary an objective telling of legal history?

We think it’s important for filmgoers and, perhaps most importantly, film critics writing about the film, to be fully aware of the background of the filmmaker behind this effort. Saladoff is not the typical documentary filmmaker. She spent 25 years representing plaintiffs in personal injury, medical malpractice, and products liability actions. Long before anyone heard the name “Stella Liebeck,” Saladoff served as a member and officer of many trial lawyer groups. Since 1983, she has been an active member (and past President) of the Trial Lawyers for Public Justice (“TLPJ“) – an organization that has launched a campaign “designed to expose, challenge, and defeat the assault now taking place on the right to a day in court.” According to the TLPJ’s official website, the group fights against those who seek to close “courthouse doors so victims can’t hold the powerful accountable.” In addition, Saladoff was active in the Association of Trial Lawyers of America (which has since changed its name to the American Association for Justice), serving as the Co-Chair for the Constitutional Litigation Committee. Much like the Hot Coffee trailer, AAJ suggests that oil and pharmaceutical companies spent millions to manufacture a purported myth that lawsuits are “out of control” and that the Liebeck case is the proof of that fact.

We’re thinking that this might not be the most objective documentary on the subject.

Given her background, Saladoff has reason to fight against the public perception of the Liebeck case as an example of the civil justice system run amok. In fact, she recently told IndieWIRE that “unbiased” juries are now elusive because prospective jurors believe that “injured people [are] trying to cash-in on so-called ‘jackpot justice,’” a view prompted by the Liebeck case. With Hot Coffee, she also seeks to warn that citizens “are giving up their Constitutional rights every day without even knowing it.” These are not the views of an objective filmmaker.

The documentary’s cast list is composed of prominent plaintiff’s attorneys, law professors, and public officials. We doubt that Kenneth Wagner, counsel for Liebeck herself, will concede that any coffee served over 140 degrees could result in third-degree burns similar to those sustained by his client. It is unlikely that Alex Winslow, executive director of a consumer advocacy organization, will reference the National Coffee Association’s statement that McDonald’s coffee conformed to industry standards. (“Scalding Coffee Debate: When Does Java Become Lava?,” The Palm Beach Post, September 7, 1994, available at 1994 WLNR 1466981 (originally printed in The Wall Street Journal). We suspect that no interviewee will quote coffee connoisseur and Costa Rica coffee plantation owner William McAlpin’s opinion that coffee is best served at 175 degrees. (Id.). Finally, we do not expect Joanne Doroshow, founder and executive director of the Center for Justice and Democracy, to mention the numerous other courts placing legal responsibility on the spiller rather than the maker of the coffee.

To her credit, Saladoff did interview Victor Schwartz, co-author of the case book, Cases and Materials on Torts, and general counsel to the American Tort Reform Association. However, if the film features other tort reform advocates, she did not list them on her website. In a recent interview with Filmmaker, Saladoff claimed that her requests to interview Karl Rove and Newt Gingrich were declined. Interestingly, she made no mention of any attempts to interview McDonald’s representatives. Apparently, that type of balance wasn’t a huge priority since, according to Saladoff, we’ve “already heard the other side” of the story.

We are left with only one question – why? If Saladoff truly desired to debunk the purported myths of the Liebeck case, why limit that exploration to those who share her views and background? Even if opposing viewpoints damage her position, they at least give the audience the opportunity to decide for themselves what is myth and what is fact. As friend of the blog and Overlawyered contributor Ted Frank once noted, the Plaintiffs’ bar has been forced to spin certain facts to portray Liebeck’s case as meritorious. They consciously avoid the fact that the temperature of Liebeck’s coffee was within industry standards and, in fact, perfectly normal. It was actually at a lower temperature than many coffees enjoyed by consumers today. As Frank correctly observes, Plaintiffs’ lawyers are forced to rely on obscure and misleading data to conceal Liebeck’s own contributory negligence. In so doing, they invoke 700 complaints made about coffee temperature, but those 700 complaints come from a total of billions of cups sold.

But who wants to watch a film with such pesky little details?

Apparently, not Ms. Saladoff.

Full Disclosure: We’ve not yet seen the film, although we requested an advance screener from both Saladoff and her publicity agent. Further, we asked for an interview with Saladoff, and although that request was initially granted and the interview scheduled, Saladoff canceled the interview several days before it was to occur and has not responded to subsequent queries.

For additional reading, check out this online biography of Ms. Saladoff from her old law firm.

UPDATE: Read our Stella Liebeck McDonald’s Hot Coffee Case FAQ.

Friday Links

  • The comic book cover depicted above is that of Blackhawk #208, published way, way back in 1965. Blackhawk, if you remember, was an ace World War II era American pilot and leader of a team of airmen called, eponymously enough, The Blackhawks. In the issue above, he’s confronted at a military trial with a photograph purportedly showing him collaborating with the enemy. We don’t know how this one turned out, but he must have been acquitted, as the series continued for another few years. We think, though, that Blackhawk, who is apparently representing himself, should object to the authenticity of the photo.
  • With our reviews of “Harry’s Law” and “Fairly Legal,” this was surely Hollywood week at Abnormal Use. But we have to ponder why the chief protagonists of all these legal shows are introduced in the pilot as just having quit a more interesting and powerful job. In “Harry’s Law,” the character played by Kathy Bates quits a megafirm to start a tiny firm and shoe store. In “Fairly Legal,” the character played by Sarah Shahi resigns the bar to become a full time mediator. In “The Outlaw,” which we reviewed last fall, the character played by Jimmy Smits resigned from the U.S. Supreme Court, of all places, to start a new firm. Uh, wasn’t he already in a good spot to influence the law? What gives?
  • Friend of the blog and John Marshall Law School torts prof Alberto Bernabe responds to our earlier post on the issue of bilingual products warning. We’re prepping our reply to his response, which may prompt a sur-reply by him. We shall see.
  • Our firm, Gallivan, White, & Boyd, P.A. has at least one lawyer live tweeting the South Carolina Bar Conventon. That would be Stuart Mauney, and you can follow him here.

TV Review: USA’s "Fairly Legal" with Sarah Shahi

As noted Tuesday in our interview with creator and showrunner Michael Sardo, “Fairly Legal” centers around Kate Reed (Sarah Shahi, pictured above), a mediator and former attorney whose idealism stands in stark contrast to the demands of her employment at a big law firm. We here at Abnormal Use obtained advance screeners of both the pilot, which debuts tonight at 10/9 Central on the USA Network, and the fourth episode, which will air in February. Written by Sardo, and directed by Bronwen Hughes, the pilot sees the puzzled fiancé of a plaintiff ask Reed, “What kind of mediator are you?” Litigators may have the same question, as the mediation process depicted is quite different than that to which practitioners have become accustomed. Be forewarned, there may be minor, minor spoilers in the review we offer below.

Weary of the legal profession, Kate explains that she has “more than a small amount of self-hatred.” This may be why she has given up her litigation practice and gone so far as to resign her membership from the California State Bar. But the law is in her blood, and she comes from a family of lawyers. Her late father was once a masterful attorney who built the large San Francisco law firm of Reed & Reed. Her brother (Ethan Embry), who has retired from the profession, used to work at the family firm. Her “evil step mother” Lauren Reed (Virginia Williams) – much, much younger than Kate’s father – is now the managing partner at the law firm, which is struggling in light of Kate’s father’s death. To boot, Kate’s own ex-husband, Justin Patrick (Michael Trucco) is an assistant district attorney. So, despite no longer having a law license, Kate elects to maintain a mediation practice and remain in the employ of Reed & Reed.

Kate has the sort of quirky existence seen on contemporary television programs: she lives on a boat, maintains an unusually close relationship with her ex-husband, programs her iPhone to display images from The Wizard of Oz based on the personality of the caller, and never seems to find herself on the wrong side of the issue presented in the episode. Shahi plays Reed with a charm of sorts, although there is an element of the holier-than-thou in her character, who often has to explain why the traditional result of the law is not always the product of justice.

In the first episode, Kate mediates two principal disputes. In the first, she is called upon to resolve a disagreement between a stern father and his adult son – both of whom are corporate representatives of a large clothier client which had negotiated a buy out now in peril due to the family dispute. Apparently, the son was charged with a DUI under mysterious circumstances which threaten the transaction. In the second, Kate is appointed by a judge to mediate a dispute between a pro se plaintiff, a recently engaged man, who is suing three pro se defendants who he claims ruined his meticulously planned proposal. Her approach to both cases is unorthodox, to say the least, and at times, she seems to stray into offering legal advice to non-clients (which, of course, she should not really do as the mediator, especially a non-attorney mediator).

Like many television lawyers, Kate is an idealist. She shows up at one client’s house late one night and encourages him to “do the right thing” – something which is contrary to his own wishes and best interests. Her managing partner advises her that a non-client criminal defendant is not worth attention – and Kate responds sarcastically that she should “never let an innocent kid’s life stand in the way of our legal fees.” She lectures her district attorney ex-husband about justice and truth being higher than the laws that are held up as sacred and immutable. The difficulty she faces – and what is bound to become a central theme of the show – is her philosophy and its conflict with the daily back and forth of the legal profession (which she comes to understand are just as important, but not more, than her own idealism).

One of the most interesting characters is Williams’ Lauren (pictured above), the managing partner who is forced to do a bit of wining and dining to rekindle client relationships in the wake of her husband’s death (which leads to its own set of ethical difficulties). She faces a clear set of challenges, not just in the perils of client retention but also the day to day struggles of the business of law. (Real life firms Morrison Forrester of San Francisco and Wilson Sonsini Goodrich & Rosati of Palo Alto get shout outs as law firms moving in on Reed & Reed’s business following the death of Kate’s father.). To boot, Lauren also must cope with older male clients who think that she, as both a woman and a younger lawyer, might not be up to the task. As a foil to Kate, she could just be another symbol of a broken system, but there is potential in this character to showcase real and true dilemmas faced by attorneys across the country.

There are, of course, a number of inaccuracies and issues with the depiction of both the legal profession generally and the operation of a major law firm specifically:

One judge (Gerald McRaney) appoints her to mediate the dispute between the aforementioned unrepresented plaintiff and three unrepresented defendants. In so doing, he actually summons her to court (where all of the parties are waiting in the well of the court for the appointment to occur). The judge gives her two days to successfully mediate the dispute – a $10 million civil suit brought by a spouse suing an actor for blundering a proposal. Interestingly, she notes that two days would not be enough time to mediate a case involving multiple defendants and such a high initial demand.

Although we are told from the beginning that Kate is not a lawyer, she does not always inform those with whom she interacts and likely leaves the impression that she is not only a lawyer – but their lawyer as well. In the pilot, she visits an unrepresented criminal defendant and essentially offers legal advice in a fashion that borders on the unauthorized practice of law. Further, she makes no disclaimer to the defendant that she is not a lawyer generally and not his lawyer specifically, leaving him with the reasonable impression that he has created an attorney-client relationship with her.

Lauren, the managing partner, busily scurries about trying to save revenue. However, she never remarks on the fact that Kate, by resigning as an attorney but still holding herself out as a mediator, would almost certainly have to reduce her hourly rate. Surely a client would demand a lower rate for a former lawyer mediator than a licensed attorney mediator, especially from such a young former attorney as Kate.

As he indicated in his interview with our site, Sardo thinks of mediation as an opportunity for parties to a dispute to speak for themselves rather than through an attorney. If the pilot and fourth episode are an indication, this will lead to a reliance on stories involving unrepresented parties involved in a dispute with other unrepresented parties.

Although we dig the character, Lauren is a bit young to be a managing partner. According to her IMDB entry, Williams, the actress who portrays her, was born in 1978, making her the age of many associates. It may be difficult to buy into a managing partner of a major law firm being portrayed by an actress who was an aspiring teenage actress as recently as the mid-1990s (which was not too long ago). But, hey, it’s television, and what can you do?

What Sardo is trying to do with the show, though, is admirable. He’s not trotting out another formula legal drama that we’ve all seen before a million times. Rather, he’s attempting to depict the day to day business of alternative dispute resolution, which is something we here at Abnormal Use have not seen much of in popular culture. Sure, he’s got to take some liberties with the process, as no one wants to watch a program about a mediator shuffling from one conference room to another taking numbers back and forth and attempting to settle a case in that fashion.

Study Linking Childhood Vaccines with Autism a "Fraud"

By now, we’ve all heard The Associated Press report that the 1998 study conducted by British doctor Andrew Wakefield, from which he concluded from his study of 12 children that a link existed between the MMR (mumps, measles, rubella) vaccine and autism, has now been renounced and regarded as “a fraud” by Britain’s preeminent medical journal. The British Medical Journal (BMJ) condemned Wakefield’s work, claiming that he intentionally altered data to produce false results. The original publisher of Wakefield’s study, The Lancet, retracted the article last year, following which the British General Medical Council stripped Wakefield of his license to practice medicine.

As we previously reported here, the U.S. Supreme Court heard arguments recently in a case that likely will have significant implications for hundreds of pending lawsuits against vaccine makers, the vast majority of which allege a causal link between childhood vaccines and autism. The BMJ’s recent denunciation of Wakefield’s study certainly should play a significant role, too, in the disposition of these pending suits. According to a recent report in The Chronicle Herald, past investigations into Wakefield’s study revealed that his study received funding from lawyers who were suing vaccine manufacturers and that Wakefield, who had developed an alternative to the MMR shot, stood to gain financially if the leading vaccine was dropped from use.

Unfortunately, Wakefield’s bogus study has already caused some significant damage. In spite of the fact that numerous, more expansive studies found no causative link between childhood vaccines and autism, hundreds of thousands of parents–mostly in the U.K. and U.S.–have forgone vaccinations for their children. Not surprisingly, this has led to significant outbreaks of various preventable diseases, most notably those of measles and whooping cough. In 2010, California broke a 55-year-old record for the number of reported cases of whooping cough. We here in South Carolina also have seen a significant rise in the number of cases of whooping cough in recent months.

Although the recent exposure of Wakefield’s fraud brings good news to the scientific community, it seems as though the damage has been done. Though fraudulent, Wakefield’s study certainly was successful in raising long-lasting skepticism over vaccines.

Abnormal Interviews: Michael Sardo, Producer of USA’s "Fairly Legal," Talks Mediation

Believe it or not, we here at Abnormal Use scored an interview with Hollywood writer and producer Michael Sardo (pictured above), whose new show “Fairly Legal,” debuts Thursday night on the USA Network at 10/9 Central. The show stars Sarah Shahi (pictured below) as Kate Reed, a lawyer turned mediator, whose spirited idealism pits her against the staid conventions of life at her late father’s San Francisco law firm. So weary of the legal profession is she that she actually resigned from the bar. However, she has decided to remain a mediator at the firm and work alongside Lauren Reed (Virginia Williams) who, in addition to being the firm’s by-the-book managing partner, is also Kate’s father’s young widow. Further complicating Kate’s life is her relationship with her ex-husband, Justin Patrick (Michael Trucco), an assistant district attorney who somehow finds himself embroiled in many of Kate’s many mediation antics.

Sardo was kind enough to grant us an interview earlier this month about the show and his philosophy on alternative dispute resolution in general.

DEDMAN: You’ve referred to “Fairly Legal” as “our little anti-law law show,” and I wanted to ask you first, how is it different from other legal shows?

SARDO: Well, it’s different in several ways. It doesn’t take place in the courts. One of the most important scenes in the pilot is Kate being thrown out of a court. She’s the thing that doesn’t belong. Kate Reed, the lead character, is a former lawyer who was frustrated with the law and who resigned from the bar and becomes a mediator. She tries to find a more direct way to solve conflict. Kate’s point of view is that the artifice of the law is this sort of standardization that’s needed to create laws that fit all levels of society [that] actually leaves out some of the most important parts, and she wanted to get to those most important parts. At the same time, in the pilot, she realizes that you often need lawyers and the law because if everyone was a mediator, that way lies anarchy. But as the balance has shifted to us being such a litigious, law-filled society, she is someone who moves towards the opening up of another way for some conflicts to be resolved.

DEDMAN: Now, if I were a client of the Reed & Reed law firm, why would I want Kate Reed to mediate my dispute?

SARDO: Because she would understand the cost, both physical and mental, of going to court, what you could possibly win, but also what it would cost you, and what you could possibly lose, and so she would first propose a more direct streamlined solution which involves hearing what you think, and what the injured party or the complaining party thinks, would be the solution. . . . [N]owhere does the show say we don’t need laws or lawyers. . . . [S]ay you go into a courtroom, [and] I have a disagreement with Jim Dedman, who’s my neighbor – so instead of talking to him, I go to court. . . . . I don’t talk to anyone. My lawyer talks for me. His lawyer talks for him. And then, a judge, who’s sort of dad or grandpa, tells us what’s going to happen. He doesn’t tell you what’s right or wrong but what the law says is right or wrong. So we kind of give up our rights and our adulthood and sublimate it to these laws, some of which may work, and some of which may not. It’s a system that functions well in some cases and really poorly in others. Kate is someone who takes a more direct approach and . . . puts [people] in a mediation where they get to talk for themselves and propose their own solution.

DEDMAN: You mentioned at the beginning that she is a former lawyer, and at some point in the events prior to the pilot, she surrenders her law license as an attorney to become a mediator. Why does she take that approach?

SARDO: A lot of lawyers who are also mediators . . . [they're] still a lawyer. [They] can still then also hold what’s happened in a mediation confidential, and then be engaged as the person’s lawyer, and Kate wanted to make a clean break from being a lawyer. But she was still interested in the pursuit of justice and truth. . . . Kate is someone who would cut things off if she didn’t like the way they were going. This is the beginning of her becoming an adult in the sense of saying, “I don’t like some of that, but I do like some of it, and I’m going to stay, I’m going to work at my father’s law firm, but I’m not going to do it the way he does it, and the people around me do it. I’m going to make it my own.” For me, as a writer, what appealed to me about that character was the idea of you taking two people in conflict, you put them in a room, you close the door and you send in someone like Kate – to me that’s inherently interesting drama without any of the other artifice surrounding it I think you’ve got to peel away to get through the drama.

DEDMAN: Some of the promotional materials describe Kate as a “recovering attorney,” and in the pilot, she says that she has “more than a small amount of self-hatred,” and I wanted to ask you if those are connected in any way.

SARDO: [Laughs.] Well, like any of us you know, our work life and personal life are connected. Kate is really well aware of her flaws, and she is someone who can act impulsively, and often will do something that makes whatever she’s dealing with, whether it’s personal or professional, worse, because she acts in the moment, and that’s where the “no small amount of self hatred” comes from. “Recovering attorney” is a line I actually heard from more than one mediator who I talked to who said that’s how they referred to themselves as “recovering attorneys,” and I just thought it was great and was always looking for a way to work it in.

DEDMAN: You once gave an interview a while back in which you said that “the writer’s job is to have a point of view,” and I wanted to ask you, what is the point of view you’re expressing in telling stories about mediation, which is something that is not often depicted on television?

SARDO: My point of view is that anything that’s important to you, you should be as personally involved as possible, and you should let your point of view be known, and you should have part of the solution. Whether you caused the problem, or you’re affected by the problem. And that the less you turn it over to someone else, the better. And in my own experience, just in life, the further things get removed from having some kind of personal contact, [the worse they become.] . . . [Y]ou used to go and get your mortgage from your local banker, and he sized you up, and said, “Can this guy pay this for 30 years?” So what happens when they would bundle this part of 10,000 mortgages? There’s no accountability on either end to what happens in court. They sort of give themselves over to a system, and you hire someone with a knowledge of that system to work it to your advantage. . . . [T]he more that people can get involved themselves and take charge of [and] make their own statement about what they want and need and let that be known and try to work it out, [the better.] It’s still not a perfect system, but [it's] a better system.

DEDMAN: Now, Kate is an idealist and appears unappreciative of the day-to-day operations of her law firm. Why does she still work for that firm?

SARDO: She gives a speech at the end of the pilot where she acknowledges for the first time out loud what is the advantage of the law and the law firm that you do need both things. To go back to your earlier question, what bothered Kate about the law was that every lawyer that I know has had cases that bothered them. But they had to accept that that’s how the law works. [They] knew that somewhere down the line someone was going to change that or that [there] was a wrongful conviction but the person will eventually get out. It’s that kind of ancillary damage that you have to accept to be a good lawyer, I think. It’s a thing that Kate couldn’t accept. But she knows that you need laws in a society. It’s the situational part of it that she couldn’t look away from – the way laws apply differently to different economic classes and different people have different degrees of lawyers. She couldn’t participate in that system any more, but she wanted to be part of the figuring out of truth and justice part of the system.

DEDMAN: One character that was particularly interesting to me as a lawyer was Lauren, who’s played by Virginia Williams, who is the managing partner of the firm and the foil to Kate. How do you think viewers, or lawyer viewers in particular, will respond to that character?

SARDO: . . . [W]hat I hope, and what Virginia and I have both worked really hard on, is to create a character who is – in the hands of a less gifted actress – would be easily parodied. She seems on the surface to be a trophy wife and kind of a bitch, and I think Virginia has found a way to play Lauren the way it was intended: to be neither of those. She actually had a true love with Kate’s dad, and that’s what bothers Kate, even on the surface. Yes, she’s thirty years younger, and she’s beautiful, but she’s quite a good lawyer, and she’s quite smart, and Lauren and Kate both want similar things. But they’re looking at the world through different facets on the prism. Lauren believes the world works best when the trains run on time, and she’s the person to run them. And she looks at the firm and says, “You know what, Kate, I’m watching out for the clients who are paying us, that’s why you have a job and your assistant has a desk and health benefits, and the lights are on. There is good in what I do, not just that it keeps the building running, but that I’m enforcing the law.” She believes in it, and she believes in the rightness of it, and doesn’t believe that it’s her job to change that. Kate questions everything, and between those two poles, I think they represent the two poles of how you can feel about the law, and I don’t think that it’s a healthy system that functions with just one or the other. I think you need both.

DEDMAN: One interesting thing is that both Kate and Lauren have roles that have traditionally been held by men in the past, both in the legal profession and in television depictions of the legal profession. Will the series explore the challenges that are unique to female mediators and female managing partners in the law?

SARDO: Yes, very much so. You see it in one scene in the pilot in what Lauren faces. . . . [Y]ou see how she has to deal with a very important client of the firm and make a decision as to which way she’s going to take that. Kate will deal with some of those issues, also, because, it’s funny, when you have a lead as attractive as Sarah Shahi, and you want to portray her as very serious about her work, but at the same time, you can’t be oblivious to the fact that she’s gorgeous. So, we made a conscious decision to have characters react to that and react to her as a beautiful woman because she is one. If she was a handsome man, people would react in a certain way, so she will have people react to how she looks. . . . Lauren particularly will have to confront those things in her position because of her visibility as managing partner and the fact that she often has to play hardball within the firm and with other people who are interested in the firm.

DEDMAN: One thing that Kate does in the pilot is show up at the front door of a client’s home and encourage him to do “the right thing.” What happens when her definition of “the right thing” conflicts with her firm’s duty to represent that client who might not want to do “the right thing”?

SARDO: That is the conflict that exists between Lauren and Kate, and I was very interested in that because I think that’s the conflict all of us face in all of our jobs. I think if you’re working at an auto repair place [then] you know that you’re being pushed to find everything that can be fixed because you want a higher bill. Every time I go into Starbucks they say, “Would you like something to eat with that?” [Laughs.] Everyone is trying to increase their billings, and they’ll say it to you whether you’re on a diet or 100 pounds overweight or not interested in a snack. So Kate and Lauren, I think that’s something that in all our professional lives we have to grapple with. . . . Kate had to acknowledge the reality that you have to be conscious of the client, and Lauren is not someone who’s without morals. She will also have to deal with the moral complications of making decisions that are better for the business but worse for overall justice in the world.

DEDMAN: Have you gotten any feedback from practicing mediators about the show?

SARDO: Not yet, but it’s starting to come. I’m going to be talking with some soon. I talked to mediators as I was developing the show about their motivations to become a mediator. A lot of them had been lawyers. And about what are the boundaries of what a mediator can do, and what interested me was how much they all repeated the same thing, which was it’s completely about the personality of the mediator. . . . We’ve tried very hard to stay with some degree of realism of what a mediator could do. Of course, the most colorful, interesting, fun mediator. I think people are starting to see the pilot so I will be hearing from our mediator friends.

DEDMAN: You’ve gotten some good supporting cast members and some guests. I noticed you have Gerald McRaney and Esai Morales and John Ashton and Chris Ellis in the two episodes that I saw. Is there anyone else that we can expect to see in the first couple of episodes?

SARDO: Richard Dean Anderson comes back a couple of times. Gerald McRaney will be on a few. and he’s wonderful. Wonderful to have. Ken Howard is in the pilot. We have – I’m trying to think of anyone else that you would really know. Paul Shultze from “Nurse Jackie” does a great turn for us. He plays Eddie the pharmacist on “Nurse Jackie.” I think those are the ones you would know, I’m sure I’m leaving someone else out and hoping they don’t read Abnormal Use.

DEDMAN: I do have to ask you about the “Battlestar Galactica” connection. Michael Trucco plays the assistant district attorney, Justin Patrick, and Esai Morales plays his boss, the district attorney. Trucco was on “Battlestar Galactica” and Morales was recently on [the "Battlestar Galactica" prequel] “Caprica.” Is that a coincidence in the DA’s office on the show there?

SARDO: [Laughs.] I like that you’re looking deeper than we had time to think when we were casting. We were just looking for the best actors we could find, and the good actors work a lot, and they just happen to be in close proximity to each other, but it was not by design. Some of “Battlestar Caprica” people may want to believe it is.

DEDMAN: . . . [M]y last question to you would be is generally, what do you believe is the chief advantage of mediation as opposed to litigation?

SARDO: Quicker. Cheaper. More satisfying. And more in control of your own destiny.

Incidentally, the quotation we reference in our fifth question to Sardo comes from a 1991 interview he gave to Media Week as a 31-year old writer and recent Emmy nominee. The relevant portion of that interview is as follows:

“One of the biggest problems of TV is that show creators write what they can sell and not what they want to watch. I just write what interests me,” says Michael Sardo, 31, who earned an Emmy nomination for his writing for the “The Tracy Ullman Show” before landing a development deal at Lorimar Television to create half-hour comedies for the networks.

“Most of my ideas don’t sell, because they are not recognizable television,” he says. “In my work, the characters have problems that actual people may have. People keep trying to write things that are already on. Why? You’ve already got one. The writer’s job to me is to have a point of view.”

The same obligation should extend to the networks. “There’s a tendency to homogenize – - to appeal to every kind of audience. Always go for the most intelligent way. Executives seem to talk about this fictional audience that’s moronic. Networks should try to come up with what they see are good shows and not what they think people want to watch.”

Sardo came to Hollywood in 1982 via a blue-collar Bronx childhood and Ivy League education to pay his writing dues. At one point, he even lived out of his car. A spec comedy sketch finally landed on NBC followed by two specials for MTV and the Disney Channel before Sardo wound up on the Tracy Ullman staff.

While he credits shows like Northern Exposure, L.A. Law, and Murphy Brown as exceptions, more often, he says, writers and networks try to go for the quick buck by succumbing to safe story structures, then get to used to the money or typecast as formula writers.

“That’s why you also see such unlikely pairings in sitcoms,” says Sardo. “‘She’s a Jew, he’s a Nazi.’ Come on, would they really be together?”

Karlin, Sue. “The New Producers,” Media Week, October 14, 1991.