Thoughts on “Hot Coffee” Director Susan Saladoff’s Appearance on “The Colbert Report”

Last night, plaintiff’s attorney and “Hot Coffee” documentary filmmaker Susan Saladoff appeared as the guest on “The Colbert Report” on Comedy Central.  You might recall that Saladoff’s Hot Coffee documentary debuted at the Sundance Film Festival back in January.  Thereafter, it premiered on HBO in June.  Why the media blitz in late October? Well, Saladoff is now promoting the November 1 DVD release of her documentary.  This is big news.  For just $29.95, you can own a copy of the film complete with extra footage. Just in time for the holidays!

You can find the clip of her appearance on the Colbert Nation website here.

The majority of the interview was a simple rehashing of Saladoff’s standard mantra – tort reform is bad, frivolous lawsuits are uncommon, and corporations are brainwashing us to think otherwise. Obviously, we don’t share Saladoff’s point of view, but her message is one she is free to make. She certainly didn’t dedicate much time to discussing the Liebeck case itself – the litigation from which her film takes its name.  When asked by host Stephen Colbert about the frivolous nature of Liebeck’s lawsuit, Saladoff responded with her all too familiar talking points:  1)  Liebeck’s injuries were real; 2) McDonald’s only offered $800 to settle the case; and 3) McDonald’s knew its coffee was capable of causing burns and continued to serve it nonetheless.  That’s all true, of course.  Liebeck did sustain third-degree burns.  McDonald’s did initially offer $800 to settle the case, presumably believing it could not be held liable for damages caused by an individual drinking a hot beverage.  The testimony in the case indicates that McDonald’s did know that hot coffee could cause burns. But even if we take those three points as a given, so what?

As we’ve often asked on this site, why should McDonald’s be held liable for damages caused by a beverage which by its nature is meant to be served hot?  When presented with that question, Saladoff claimed that McDonald’s knew its coffee could not be consumed at the temperature at which it was served.  Seriously?  It seems absurd to think that a business would serve a product it knew no one could consume.  We suppose someone forgot to tell the billion customers who purchased – and presumably drank – McDonald’s coffee in the decade prior to Liebeck’s accident.  Further, Saladoff alleged that McDonald’s coffee was capable of causing third-degree burns in as little as three seconds.  Three seconds?  Really?  If true, one would expect far more burn complaints considering the billions of cups of coffee sold.  Why not mention the fact that Liebeck sat in the coffee for 90 seconds?  Why not mention that Liebeck’s clothing actually held the coffee closer to her skin?  Why not mention that Liebeck could have suffered the same extent of burns had the coffee been served at a temperature as low as 130 degrees?  Apparently, these facts aren’t necessary components of the “real story.”

Saladoff also mentioned that Liebeck’s settlement agreement with McDonald’s included a gag order.  As we’ve noted before, Saladoff was a plaintiff’s personal injury attorney for 20 years prior to her turn as a filmmaker.  We suspect she’s previously encountered confidentiality provisions in settlement agreements, which are included for all sorts of legitimate reasons.

We here at Abnormal Use continue to question Saladoff’s inclusion of the Liebeck case in her anti-tort reform documentary.  We also wonder if the DVD “extras” she mentioned actually contain new information about the Liebeck case or if they are comprised of more out of context anti-tort reform talking points. If you pick up a copy on November 1, be certain to let us know.

On South Carolina Tort Reform (Or How the Tortoise Finishes the Race)

As you may have heard, our own state of South Carolina finally passed a long awaited (or long dreaded depending on your side of the fence) tort reform act.  They call it . . . . . The South Carolina Fairness in Civil Justice Act of 2011, and the new law contains a punitive damages cap. Although it is most certainly a step in a direction, this blogger is still unsure which direction that is.

Here’s what the Punitive Damages section of the Act says with regard to caps:

Punitive damages will be capped at 3 times compensatory damages OR $500,000, whichever is greater.


1. The wrongful conduct was motivated by “unreasonable financial gain” and the person in charge knew of or approved the “unreasonably dangerous” nature of the conduct that was highly likely to result in injury;  (Ummmm.  What?)


2.  The wrongful conduct COULD subject the Defendant to a felony conviction;


Punitive damage will be capped at 4 times compensatory damages OR $2 Million, whichever is greater.


1.  The Defendant  intended to harm;


2.  The Defendant pled guilty to or was convicted of a felony arising out of the same act;


3. The Defendant acted while under the influence of alcohol, drugs, glue, aerosol, or other toxic vapor;


No cap.  (Glue huffers be damned.)

So, when exactly are the punitive damages capped at at three times compensatory damages or $500,000? When exactly does the motive for financial gain become unreasonable?  When it motivates a tortious act?  We expect to see many a law dog sparring over what is reasonable or unreasonable financial gain. Ah, more issues to be heavily litigated.

Also interesting is the requirement, in the 4 times compensatory/$2 million category, that the person in charge knew OR approved “the unreasonably dangerous nature of the conduct,” which had (has?) a “high likelihood of (causing) injury.”  So, could he approve it but not know that it was unreasonably dangerous with a high likelihood of causing harm?

The new Act takes effect in January of 2012.  We’ll be certain to keep you posted.