Hot Coffee Flap

CONFIDENTIAL MEMO*

To: U.S. Chamber of Commerce Institute for Legal Reform Members

From: New PR Person in Charge of Responding to “Hot Coffee”

Date: May 21, 2012

Re: Please don’t fire me

I realize a lot was expected of me. I am fully aware that each of my seven predecessors were unceremoniously sacked for failing miserably in their one task – trying to destroy the award-winning documentary film, Hot Coffee. 

Now without making any excuses, I do think we should ask ourselves how this happened. I realize that we’re terrible at making films that anyone wants to watch. But we’re supposed to own the narrative on “tort reform.” That’s why we produce expensive movie ads, make our own commercials and create our own newspapers.  No one’s supposed to hear the other side of this, let alone millions of HBO/DVD viewers! Plus the film just won an award from that pinko Hollywood outfit, the Emmy’s. That won’t help.

Problem is, trying to damage the film now – over a year since its Sundance premiere and after much acclaim in the meantime - is probably insane. But when ATRA’s and ALEC’s Victor Schwartz came begging, still miffed that the film used sound bites of things he actually said, I thought well, we still have boatloads of cash. Let’s see how far we can get once again re-arguing (this time in webisodes) McDonald’s case  – a case that the jury didn’t believe, a case that the judge and jury both rejected, and which led the judge, in refusing to grant a new trial in the case, to call McDonald's behavior “callous. We thought if we upped the star power by having Victor’s corporate law partner join in, and then promoted it all with some Google and Facebook ads … well, what’s the harm? 

Unfortunately, some people have now brought to my attention a few “inconvenient” facts that … again – I beg you, please don’t make me #8.

First, you know how the whole last part of our little project (that would be webisode 6) accuses Hot Coffee of misleading viewers on how Jamie Leigh Jones got her case before a jury, saying that Sen. Al Franken’s efforts had nothing to do with it? What, did we have pre-schoolers doing the research on this? Because I just found a March 23, 2010 article from the Minneapolis Star Tribune, where KBR itself essentially confirms exactly what Hot Coffee says, specifically: 

In a victory for Minnesota Democrat Al Franken, military contractor KBR has decided to drop a Supreme Court appeal in the case of a former company clerk who alleges she was raped by co-workers in Iraq. KBR's decision represents the first significant legal fallout from the "Franken amendment," which protects defense workers from being forced to accept arbitration after suffering sexual assault, battery or discrimination. The measure became the subject of a testy Senate battle that reverberated in legal circles and in popular culture as the subject of a Jon Stewart rant on cable TV's "The Daily Show."

KBR, which has sought to handle Jamie Leigh Jones' claim out of court, acknowledged Tuesday that its appeal might violate the amendment. …

Although the incident happened five years ago, when Jones was 20, the company could still be covered by the Franken amendment, which was intended to bar defense contracts to companies that enforce new or existing arbitration agreements in cases such as Jones'.

And then there’s the part where we say that overall damages caps (including compensation limits for economic losses) are so rare that focusing on Nebraska’s law (as applied in the Gourley’s birth injury case) was “misleading” and an example of using “slight of hand.” How was I supposed to know that just as our ads were hitting Facebook and Google, a jury verdict was coming down in a whole other state – Virginia – which also has this kind of cap? And now, just like in the Gourley’s case, this verdict is gonna be drastically cut, too!  Economic damages! Hey, I’m not omniscient. I can’t control the timing on these things.

The Virginia case also involved a severe birth injury due to negligence by doctors, where the jury decided the child needed $9 million for a lifetime of care – but due to the cap, she’ll get a fraction of this. Now, I’m not complaining. Believe me, you won’t ever find us lobbying to repeal overall caps no matter how “extreme” we say they are. So here’s what happened in Virginia: 

… Marissa [Simpson, Marsha's daughter] was born with dangerously low blood pressure, and with a loss of one-third to one-half of her normal blood amount. Additionally, her kidneys had been destroyed, and she suffered a brain injury from lack of oxygen. To date, Marissa has undergone two kidney transplants, and she has cerebral palsy. The attorney said the decision to induce was negligent, and once complications arose, doctors should have acted more quickly.

The family has spent more than $1.75 million to provide care for Marissa. Expert witnesses testified they could spend up to $8 million in the future.

[Attorney] Krasnow said he anticipates the defense will file a motion to ask Judge William Broadhurst to follow Virginia law, which caps the damages recoverable at $1.4 million each for Marsha and Marissa Simpson.

Let’s just hope this case doesn’t make it into the new edition of the Hot Coffee DVD extras. And by the way, when we say the 7th Amendment doesn’t mean juries get to decide damages in civil cases, just don’t tell the guy who came up with the constitutional arguments that we use for repeal of the health care law.  He doesn’t agree with us.

I do want to emphasize that when we complain about using “subjective opinions to reach forgone conclusions,” pointing out that “flapjacks have two sides,” we are limiting our comments exclusively to Hot Coffee. I’ve heard some complaints that these words could actually apply to us, since we clearly only use “subjective opinions to reach forgone conclusions.” Please do not worry. By no means do we have any intent of ever engaging in flap jacking.

So, we good? 

[*Via the ancient art of satire]

Comments

[Joshua Lowe]

One of the most frustrating things I have ever done as a Plaintiff PI paralegal, was attempting to explain the actual facts surrounding "McDonalds" to people.

When listening to some folks preconceived notions of the "facts" of the case -- and more importantly what those "facts" mean in terms of the civil justice system -- it becomes clear that those ideas are *not* the products of accidents or simple ignorance.

They are the products of relentless and morally bankrupt campaign of misinformation backed by nearly limitless bankrolls to convince people that the civil tort system is not only ethically challenged but an actual existential threat to the Republic and that it should be treated as such.

For our part, we have done a poor job of fighting back against this... and there are a variety of reasons and causes. But movies like "Hot Coffee" are good first step.