A Challenge to Reed Morgan, the McDonald’s Hot Coffee Plaintiff’s Attorney: Release the Trial Transcript!

The sinister suggestion that major corporations have conspired to use the Stella Liebeck McDonald’s hot coffee case as a tool to promote tort reform is odd, although film maker Susan Saladoff and her pals at the The Pop Tort seem to believe that business interests have spent millions in an effort to make the Plaintiff Stella Liebeck the poster plaintiff for tort reform. That’s one of the themes of Saladoff’s Hot Coffee documentary, which we reviewed yesterday. However, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes.

Sigh.

These allegations of corporate malfeasance prompted some thinking on our part. If the Stella Liebeck case has truly been misrepresented by maleficent corporate interests for the last 17 years, is a documentary by a plaintiff’s attorney like Saladoff the best way to expose it?  Wouldn’t the best way to ensure that the public knew the truth be to place as much information in the public record, thereby permitting the public to decide the issue without spin? Saladoff herself must agree in spirit, as part of her film includes her selectively presenting citizens on the street with trial exhibits from the Liebeck case, including photographs of Liebeck’s injuries.

But why be selective in releasing those original source documents?

As we previously noted, the 1994 Liebeck verdict came at a interesting time; the communications infrastructure we rely upon today was in its most nascent stage. Although colleges and universities (as well as early adopters and huge nerds like we here at Abnormal Use) had Internet access, the general public did not, and newspapers did not publish articles online to be relied upon later by armchair researchers.  Thus, in this age of information, most of the source material we have on the case is second-hand, at best. These days, when a lawsuit makes the news, the pleadings are instantly published on news organizations’ website. Certainly, courts place many documents on-line, whether it be the federal PACER system or state court docketing systems. But not then. We were years from court records and pleadings being placed on line. In sum, the Liebeck case, filed in New Mexico state court in 1993 and tried in 1994 happened before anyone digitally preserved such things for posterity.

Where does that leave us?

The only parties with access to all relevant information are the McDonald’s corporation and Liebeck’s estate. Despite the protestations of the plaintiff’s bar and Saladoff, the McDonald’s corporation has remained curiously tight-lipped about the case over the past 17 years. There’s no evidence that this major company has engaged in any public relations campaign; and if they had, it has not been very successful, as many people are unaware of the basic facts of the case.

If the plaintiff’s bar truly wishes to expose the “truth” behind the case, then they should look to one of their own: S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas, the lead plaintiff’s attorney who represented Liebeck during the original trial. Presumably, Morgan has a whole host of original material which could shed additional light on the case but which are not currently in the public record. By this, of course, we refer to deposition transcripts, discovery responses, and the trial transcript, none of which is readily available in any form. Allowing the general public, as well as legal scholars and researchers, to review this material would shed much light on the case and allow partisans of any persuasion to use the actual evidence from the actual trial to advance their agendas. (Saladoff had access to at least some of this material, although it’s unclear from whom she obtained it; she told IndieWire that she “was able to secure the transcript of the trial, and then went to Albuquerque where the case was tried, located the family, the lawyers, jurors, the doctor, and started talking to as many people as possible who would talk to me.”)

Some privacy concerns might exist. However, the heirs of Ms. Liebeck could easily address those hurdles and permit the release of any sensitive material. (They were apparently comfortable with Saladoff using photographs of Ms. Liebeck’s injuries.). If her relatives are willing to be interviewed by friendly documentarians about the case, we suspect they would have no problem with releasing these materials for the general public as a whole. If, after all, the goal is for the truth to be revealed, the release of as much information as possible would certainly serve that goal, would it not?

Sure, you ask, wasn’t there a confidential settlement in the case which occurred in December of 1994 which might prohibit the release of such material? We here at Abnormal Use have not seen the language of that agreement (why would we have?). Certainly, it has not kept Ms. Liebeck’s local counsel, New Mexico attorney Kenneth R. Wagner, from being interviewed by Ms. Saladoff in her documentary about the case. Further, the trial transcript is a public document, likely outside the scope of any confidentiality clause. It should be released to the general public, just as it was released to Saladoff for her purposes (but again, by whom, we know not).

Accordingly, we here at Abnormal Use officially challenge Morgan to release these materials to the extent he is permitted to do so under the settlement agreement. Further, we challenge Morgan to consult with Ms. Liebeck’s heirs to secure their permission to release any additional information (particularly Ms. Liebeck’s deposition transcript), to the extent that their permission is needed under relevant law. (Further, we recall something from law school about deceased persons no longer having any right to privacy, anyway.) Certainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?

Comments

  1. Pingback: “Hot Coffee” documentary (HBO) reviewed

  2. I believe organized tort reform groups were caught flat-footed by the McDonald’s case and didn’t get around to doing much with it until it had already become the talk of the nation through talk shows, late night TV and so forth. As often happens, plaintiff’s-side advocacy groups were more aggressive in seeking coverage for their side in the media. Thus Public Citizen and allies gave a press conference on Capitol Hill and were rewarded with a big Newsweek story summarizing their talking points (as well as, earlier, coverage in the news-side WSJ). I’m pretty sure no groups critical of the Liebeck award ever did a comparable press push; and the McDonald’s company itself, so far as I know, never chose to cooperate with commentators who might be sympathetic to its legal case.

  3. I have discussed this case online with various people for years. Despite various people swearing that they had access to the source documents for a class they took , no one has ever been able to produce any of the relevant documents.

    I’d be particularly interested in seeing the memoranda in support of and opposing McDonald’s motion for summary judgment.

    Until your FAQ, the closest anyone has come to a source was the Andrea Gerlin article from 1994.

  4. Could the trial transcript not be obtained from the Court?

  5. Trial transcripts and pleadings filed with the court are public records and are available to all. You have to pay for a transcript, though.

  6. Jim Dedman says:

    Typically, that is true, but 17 year old trial transcripts are usually no longer in existence. Besides, if the Plaintiff’s bar is clamoring for the “truth” about the case to be revealed, why not simply post it online for all to see? Why force the public to pay for the release of the transcript when you are trying to educate the public about what is in the transcript?

  7. So you first say,

    “[h]owever, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes,”

    yet you conclude by saying,

    “[c]ertainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?”

    That sure looks to me like you’re using “the absence of evidence of a conspiracy [] to confirm its success.” Also, you are implying that the trial transcript is somehow being shielded from release by the plaintiff’s attorneys and estate (again, another conspiracy theory)? Really? I’d imagine there’s approximately a 0.00001% chance the trial transcript is sealed AT ALL, and even less of a chance that the entire trial transcript has been sealed.

    • Jim Dedman says:

      We’ve never suggested that the transcript was sealed. However, 17 years after the trial, it’s likely that the only people in possession of the original transcript are the parties to the case. In the end, we think that if the Plaintiff’s bar and/or Saladoff believe that the “truth” behind the McDonald’s case needs to be told, the best way to do that is to release the trial transcript.

  8. So you first say,

    “[h]owever, there really isn’t any evidence to prove such a corporate scheme, although as always, the absence of evidence of a conspiracy serves to confirm its success in some eyes,”

    yet you conclude by saying,

    “[c]ertainly, if a fair reading of these materials will result in one agreeing with Morgan and Saladoff, than there is no reason to conceal these materials any longer. However, if they are reluctant to release these materials, what’s all this talk about “truth” then, really?”

    That sure looks to me like you’re using “the absence of evidence of a conspiracy [] to confirm its success.” Also, you are implying that the trial transcript is somehow being shielded from public release by the plaintiff’s attorneys and estate (again, another conspiracy theory)? Really? I’d imagine there’s approximately a 0.00001% chance the trial transcript is sealed AT ALL, and even less of a chance that the entire trial transcript has been sealed.

  9. I think your challenge is a reasonable one. As a commenter above notes, other than the contemporaeous coverage in the WSJ, there has been very little that is publicly available in terms of the facts of the case (as often happens with state trial court proceedings even today). I think this is one of the reasons why the debate about Liebeck has raged on for so long; there effectively is no authoritative account of the case (though I think highly of your FAQ). It would be a public service if the trial transcript and key pleadings were made available online.

  10. Tamara Piety says:

    I think the best evidence of a concerted PR campaign is that the popular understanding of the case did not match the facts as reported in the WSJ article or in other places. That suggests (although it of course it does not prove) a campaign to promote a particular image of the case. I haven’t independently verified the facts in this case, but so far I haven’t read any critique that really disputes the basic facts (the extent of her burns, that she was parked, that there were prior complaints, that keeping the temperature of the coffee at the higher brewing temperature, rather than the optimal drinking temperature was a deliberate decision), rather the critiques seem to dispute the inferences to be drawn from the facts (everyone knows coffee is hot therefore she is at fault; the number of complaints in contrast to the number of cups of coffee sold was sufficiently minimal as to not represent negligence not to change the setting; even though she was parked when she opened the coffee the plaintiff was contributorily negligent, etc). The effort to spin this case continues to this day as when you go to the IMDB site for the movie http://www.imdb.com/title/tt1445203/plotsummary ou find ads for this organization http://facesoflawsuitabuse.org/ The Faces of Law Suit Abuse is a group organized by the US Chamber of Commerce organization. See this press releasse http://smallbiztrends.com/2009/12/u-s-chamber-faces-of-lawsuit-abuse-campaign-debuts-small-business-stories.html. You say that the PR wasn’t that successful because the facts didn’t get out. Well, if you are doing PR for the industry on that case you don’t want the facts to get out. That is actually evidence that a PR campaign took place. Now of course it is possible that the simple sketch of the case sounded like a frivolous law suit on its face to many reporters and so perhaps there was no need for prodding from the industry on this. Maybe this popular version of the case as frivolous took hold with no helping hand from PR. But knowing what I do about PR, I doubt it. For example, the Johnson & Johnson case involving the Tylenol recall is often cited as an example of exemplary corporate social responsibility, not only in the press but in industry textbooks. however, according to Jack O’Dwyer, a PR professional who publishes an influential newsletter for PR professionals, it is instead a notorious example of successful, albeit perhaps ethically challenged, PR campaign. O’Dwyer has claimed that the company’s response to the poisoned Tylenol was not nearly fast enough or as responsible as commonly portrayed and that it is a triumph of public relations that the common public impression is one of a heroic response. I do not know the truth of either case first hand, but I do know that news media rely heavily on press releases from PR firms and that industry has had a lot more money to spend on lobbying on these issues than the ATLA or other groups with a commonality of interests. I also don’t know the lawyer in this case. It may be that he simply represented the plaintiff and does not see himself as having any sort of mission to promote “the truth,” but rather to simply serve his client’s interests. He represented the plaintiff, not the public and it is the public’s interest in the truth that is at stake here. If there is no entity or person with a financial interest in publicizing the truth, truth may be at a disadvantage to spin. That is, I take it, the point of the movie. It need not be elevated to a conspiracy.

  11. The trial transcript is on record at the court. Any competent lawyer knows this. So I question this so-called “challenge” as written to serve any purpose other than to create an image that I have the transcript. Of course, I do not have it. Reed Morgan

  12. Jim Dedman says:

    Reed, we appreciate your comment and thank you for visiting our site. Over the years (and again, more recently), we have reviewed the documents available from the Civil Division of the Bernalillo County Courthouse where the case was tried in 1994. In fact, the Civil Division maintains a file of 1,070 pages comprised of the pleadings, motions, and other publicly filed documents. Unfortunately, the trial transcript is not one of the documents publicly on file or available for ordering from the court. I suspect that it might have been easier to locate or obtain in 1994, but not in 2011 (when the post to which you were responding was written and published).

Leave a Reply

Your email address will not be published. Required fields are marked *


+ one = 6

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>