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Stella’s jury probably got it right As a side note, I recall reading an article about the Stella Liebeck case, which totally changed my initial shock over the large verdict. The large award was for punitive damages based on McDonald’s prior conduct. It turns out that the plaintiff produced reliable scientific evidence which proved that when coffee is heated, the severity of a burn from the coffee increases exponentially. And that McDonald’s was well aware of that fact. And that McDonald’s had been sued previously for severe burns where that fact was presented in evidence. And that McDonald’s took steps to have those decisions or settlements kept confidential, while continuing to serve super-heated coffee which it knew was hotter than customary, and likely to produce severe burns, while its customers had no such knowledge. So even though Stella may have placed the cup of coffee between her legs, she was not found to have assumed the risk. The American jury system may not be perfect, but it’s far better than most laymen realize. — Joe Vaulx Crockett III, Nashville • • • Arbitration contracts offer simpler,
cost-effective way to resolve disputes In the nursing home setting, admission coordinators meet with families and residents prior to admission and explain to them the terms of the arbitration agreements. Families and residents opt for a simpler, more cost effective and expedient way to resolve disputes. Families and residents sign arbitration provisions because their good sense tells them that lawsuits are slow and complicated and that litigation already plays too large a role in our society. The signers welcome the notion that conflicts can be resolved in ways that takes less of a toll on their lives. What is the plaintiffs’ bar afraid of? Sophisticated business people in the construction, software, engineering and other worldwide industries choose arbitration every day as the preferred means of resolving high-value disputes. These people choose arbitration because they know that it is fair and efficient. Could it be that plaintiffs’ lawyers fear that arbitration is too fair to suit their purposes? Experience and trial research tell us that juries in nursing home cases respond emotionally and with passion to the issues of death and dying presented in every lawsuit. The jurors are inflamed by graphic photographs and testimony by experts who make a business of testifying, not treating patients. Verdicts in nursing home cases often do not reflect the reasoned thinking of jurors who rationally arrive at a verdict that will adequately compensate aggrieved plaintiffs. Rather verdicts often reflect the fear that is placed in jurors from the moment the trial attorneys begin voir dire. We all fear death and disability. Trial attorneys capitalize on those fears, driving jurors to “send a message” instead of doing what is just and making the plaintiff whole. The trial lawyers are not advocating for a forum which is fairer, or more accurate. To the contrary, they are alarmed and threatened by the notion that their cases might be decided by experienced attorneys who know what cases are worth, and who can judge matters objectively, even when emotions run high. The “fundamental unfairness” agenda that trial attorneys have created to repel arbitration provisions in nursing home admission agreements is not about helping ordinary people. Ordinary people pay, through higher taxes, insurance premiums and per diem charges, every time jury verdicts go into the stratosphere, and one family gets a windfall. Ordinary people lose when businesses decide to invest someplace other than the healthcare industry. Wise legislators must not confuse what is good for trial lawyers and the few with what is good for the community at large. Opinion after opinion from our courts repeats the mantra that “public policy favors arbitration.” Let’s take the opportunity to make that policy really mean something. — Rebecca Adelman and Chase Pittman, Memphis Tennessee Bar Journal
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