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Eh Nonymous

As usual, Ted manages to infuriate me simply by going after the people he disagrees with.

I'm not about to start a debate- here, or anywhere else- about what the "industry standard" is and therefore whether the Leibeck case had positive results on the industry as a whole. Nor will I argue about median verdicts.

I will, however, never concede two points:

- Ted's idiot example of an idiot Swingline stapler abuser is not comparable to drinking coffee resulting in skin grafts on the groin. If stapling _paper_ resulted in skin grafts on the groin, we could talk.

- Ted's idiot statistics - Ted, what ARE your mathematical and statistical credentials? I mean this not because I like insulting you, but because I don't know, and I don't want to make wild accusations - anyway, Ted's idiot statistical argument involves a failure to understand all kinds of things about accidents, foreseeability, chance, selection statistics, injuries, medicine, law, and lawsuits.

Or more likely, he uses statistics to bolster his case and deliberately conceals the damaging truths that could also be revealed by accurate and careful use of statistics.

If coffee is spilled, and we know it will be spilled even by consumers using the utmost care, the resulting harm falls entirely on the blameless consumer. We can spread the risk by putting the costs on the seller, which sold a dangerous product, or put the risk entirely on the user, by talking about "reasonable dangerousness," but what we're really talking about is staying in the tort system and putting a finger on the scale of justice, in order to help a bottom line and harm an individual. Not cool.

If coffee is spilled on sweat pants, in a stationary car, by a person sitting in the passenger seat, and skin grafts and months of hospitalization result because the coffee was so hot as to cause _massive and severe burns on the groin amounting to destruction of the skin_, and I will never stop hammering that leg-clenchingly unpleasant fact either, and then McDonald's offers by way of settlement offer less than her actual hospital costs, then punitive damages start to look reasonable.

700 out of 10 billion? More like 700 complaints out of a few thousand extremely unhappy injured persons, or out of a few tens of thousands injuries, or out of millions of potential or barely-averted injuries. What's the numerator? What's the denominator? And who cares, if you're relying entirely on industry propaganda statistics?

I don't join ATLA, because - why bother? - but I scarcely think that every argument they make is false. No, I find it much more plausible that front companies for repeat-player defendants (think Tobacco, restaurants, Big Booze, etc.) are Frequent Liars.

Eh Nonymous

FYI, for anyone who wants to see what I'm ranting about, the prior Overlawyered column I'm reacting to is here: http://www.overlawyered.com/archives/000589.html.

Guest

The inimitable Overlawyered at work. If you Google the Winnebago urban legend, yes, you get tons of sites observing that it is an (idiotic) urban myth. But if you look beyond the surface, as Overlawyered's proponents certainly have the capacity to do, you will see that the inspiration for the refutation was the assertion of the Winnebago myth as fact, and more than a few sites which continue to assert it as fact. If Overlawyered's proponents truly cared about tort reform, rather than as being well-compensated shills for those who wish to restrict access to the courts, they would take on people like Walter Williams when they advance abject nonsense about the tort system, such as the Winnebago myth.

For Overlawyered's proponents to then carry on with the pretense that nonsense such as the Winnebago urban myth cannot be tracked back to similar "tort reform"/"limited court access" advocates... I just don't understand how they could be so ignorant of the history of their own movement. Example:

In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The ad told the story of a guy who collected a $500,000 jury verdict after he was injured using a lawnmower as a hedge clipper. The agency later conceded that it had no factual basis for the story, but that didn't keep it from circulating widely in the media and in conservative political speeches.
Surprise - it's still being recited online, a deliberate insurance industry lie presented as fact.

Now, Overlawyered may pat itself on the back for being "more accurate" in its distortion of the legal system than those like Williams whom it seemingly pretends aren't on its side. And perhaps we should accept its bare assertion that, despite the documented history of such urban myths as the lawn mower fable, similar urban myths normally spring up completely independently of the so-called "tort reform" movement. But I don't think that Overlawyered can claim to be any more accurate or diligent in its fact-checking than the L.A. Times story it condemns - if nothing else, by virtue of its failure to acknowledge the Williams piece. (I truly doubt that they missed every reference to Williams, or to similar people who proposed the myth as truth, when they pretended that all they could find were refutations. Particulary given the way Williams touted them in his "who cares if I posted a complete fabrication, because I can find similar stories on Overlawyered" follow-up. Heck - even their own claim of a "four-year-old debunking" of the Winnebago myth is farcical, in light that the post to which they link is dated June 14, 2003.)

Walter Olson

Gee, Evan, your anonymously commenting guests are not exactly ornaments of the Bar. The one immediately above was too lazy to look at the introduction of the Jun. 14, 2003 debunking where the dating issue was explained: "The following advisory originally appeared Aug. 27, 2001 on Overlawyered in slightly different form. It is reprinted here because it is among the information most often requested by visitors to the site." -- the reprinting serving the purpose of ensuring that the debunking information turns up in searches of both new and old archives:

http://www.overlawyered.com/archives/000479.html
http://overlawyered.com/archives/01/aug3.html#0827d

And the same anonymous guest is also too lazy to do a site search on "Walter Williams" to discover that I indeed chided the columnist on Jan. 7, 2004 for being taken in by the Winnebago hoax:

http://www.overlawyered.com/archives/000701.html

Now back to the regularly scheduled denunciations of Overlawyered.

Aaron

And along comes Walter Olson himself, fascidiously avoiding the substance of the criticisms raised under cover of poisoning the well? What an honor.

Mike

Oh, yeah, the Williams column. I'm old enough (in blawg years) to remember his colums. In Column A he put forth the legend as truth. In Column B he said that it wasn't his fault for falling for the legend, since our culture of non-personal responsibility made it so that people like him would fall for the legend.

Ted

My "idiot example" was a response to someone who defended the Liebeck verdict by claiming that a product (such as coffee) that is capable of inflicting injury is per se unreasonably dangerous. If that principle is true, then I can recover if I injure myself with a Swingline stapler. Clearly, then, this is the wrong standard.

What are my mathematical and statistical credentials? In reverse chronological order, an Olin Fellowship in Law & Economics, a perfect math GRE, an A+ in advanced econometrics and economic modeling classes, a Ford Foundation fellowship, several paying jobs designing spreadsheets, fourth-semester calculus, a 780 math SAT, a scholarship to LSU for winning a Louisiana statewide high school math competition, and I was the Houston Independent School District Number Sense champion for three consecutive years from 1981 to 1983. I fail to see the relevance of any of this: either my statistical arguments are correct or they aren't, and the arguments wouldn't be more correct if I hadn't decided to drop out of my topology course in college. And I don't understand what argument you're making. The numerator is 700; the denominator is 10 billion. You haven't identified the principle by which McDonald's should be liable. If you say the denominator should reflect the people whom coffee is spilled on, we're back to the Swingline stapler or GE oven or bagel knife example, which is indistinguishable.

If Eh Nonymous wants a further response, he can give his real name and state the legal rule which he wishes to apply that makes McDonald's liable. Saying "But she was really really injured" doesn't make McDonald's more liable than if Liebeck wasn't really really injured. I really really hurt myself cutting a bagel (a doctor commented on the scar today), but it doesn't make the bakery or the knife-maker liable for my pain and suffering and lost income as a hand model.

Aaron regularly misrepresents the arguments of those he disagrees with, and his repetition of the tactic here convinces me that this is not a good faith accident. Walter addressed both points of the anonymous poster; Aaron falsely accuses him of fallacious argumentation, rather than addressing the argument, hoping to sidetrack the discussion. This is why I will no longer respond to him.

David Giacalone

I'm just happy I've got no ox to be gored from either direction.

Aaron

Geez, Ted - I'm sorry I've made you eat crow on so many occasions, and as always when confronted with fact you resort (albeit more quickly than usual) to ad hominem abusive. I am not sure, though, why you feel the need to add mendacity to your already unimpressive array of debate tactics.

Eh Nonymous

Ted, you finally address my arguments. Thank you.

I decline to unmask, since if my points are valid then they would stand no matter who made them, and if they are not then my actual identity (as my blawg indicates, a very junior associate in Philadelphia) will not bolster them. I choose to remain anonymous simply because it would detract and distract from my work without adding much of anything to my blogging and commenting relevancy. I will gladly give you my name via email upon assurance that it'll stay private, but I assure you I'm a nobody. A nobody with a valid email address and a blawg, so it's not like I'm one of the bloggers who doesn't have comments on their blog. I note that OL does publish correspondence, and also you and Walter are both quite prompt at responding to email, so you folks are definitely on the ethical side of that divide. But frankly, what's in a name? I don't know Ted and Walter except by online reputation. Nor Evan, really. Just by his words and actions.

The relevant numbers are not 700 nor 10 billion. 10 billion is, what, the total number of coffees McDonald's served in the applicable period, of perhaps 10 years? And 700 is the number of verifiable complaints discovered by plaintiff's lawyers for that same period?

The relevant numbers _are_, for the bagel or stapler-type example

- what's the injury rate for, say, a non-defective bagel knife or bagel cutter?
(bagels are the #1 source of emergency room visits in certain areas, at a certain time of day: from morning to around noon, on weekends. That's when people attempt to use overly dull blades to slice overly hard bagels, and injure themselves)
- what's the proportion of serious injuries out of the above?

- does misuse cause the injuries, such as aiming a stapler at one's own face, or cutting a bagel in mid-air rather than on a cutting board?

- does use of the product as designed and intended necessarily cause injuries in some percentage of the users?

- are some of those injuries catastrophic? (life-changing, permanently altering)

Then the questions I would ask, as a policymaker or concerned citizen or plaintiff's lawyer (although I don't do personal injury) would be:

- can we ethically or morally or justifiably leave the risk of catastrophic injury where it falls, on unsuspecting unwarned consumers, or can we allocate the risk on the company, which will spread the cost to all consumers?

You may believe that Stella was being negligent. I think that, absent cupholders (none available), bracing a coffee cup between one's legs in order to add the cream and sugar which she desired is, you know, reasonable. The jury, under the circumstances, disagreed and allocated some responsibility to her.

But I can't even believe that 7x10^-8 is the right kind of incidence to consider. How often do you burn yourself on your coffee? How often does your local McDonald's have a burn incident?

There's a pyramid, of course, with near-accidents (non-accidents, averted or avoided or minimized) being exceedingly common, and then minor accidents, then major ones, then catastrophic ones. What does the 700 even purport to represent?

Games with statistics, all of this. I burn myself on hot liquids far more often than once out of a billion times. If the beverages I made such mistakes with were hot enough to cause a third degree burn within 2 to 7 seconds, then you bet your bunions I'd be suing. After all, I'd need skin grafts.

mythago

The 'tort reform' myths will continue to get in the way of persuading clients to accept reasonable, fair settlements. After all, if some guy gets $500,000 for spilling coffee in a Winnebago, why should they take a tenth of that from Big Asbestos for killing their dad?

Ted

EN, you've provided a six-part balancing test. I don't see how that test can ever result in summary judgment for anything. It certainly doesn't distinguish between McDonald's coffee and my bagel. It certainly doesn't tell corporations how to act: is Starbucks supposed to quiz every customer on whether their automobiles have adequate cup-holders and whether they have the reflexes to quickly dry themselves off after a spill on pain of punitive damages?

Why do "near accidents" that don't injure anybody count for anything? (We'll leave aside the fact that at least some of the seven hundred complaints were non-injuries or otherwise the de minimus roof-of-the-mouth burns you describe.) In a ten-billion-cup sample, why aren't the actual number of accidents all the information you need? As you note, people burn themselves on hot beverages all the time. Stella Liebeck, sitting in absorbent cotton sweatpants (again, why not sue the clothing manufacturer for not using safer Goretex?) sat in a puddle of hot liquid for ninety seconds without attempting to dry herself off. That's why she was so grievously injured. Don't you realize that if McDonald's coffee were really as dangerous as ATLA is claiming, there would be far more than a handful of third-degree burns?


Moreover, none of your arguments even begin to justify punitive damages for hot coffee. Punitive damages aren't for risk-spreading, they're for instructing the defendant not to engage in a particular form of behavior.

What's "ethical" or "moral" about requiring customers who prefer hot coffee to pay for Liebeck's own carelessness? If the answer is that it's bad to leave grievously injured people uncompensated, why limit that principle to hot coffee drinkers? Why not tax soda drinkers to pay for Liebeck? When I was a kid, my next-door neighbor was killed by a judgment-proof drunk driver going the wrong way on a highway. Which pool of consumers should compensate his family? Beer drinkers? Auto drivers? Gasoline users?

If your real argument is that, notwithstanding the desires of hundreds of millions of consumers, people should not be allowed to purchase beverages heated above 140 degrees, then make that argument. But why have this question resolved by juries rather than the legislature?

(Aaron once again demonstrates why I don't respond to him: he has never "made me eat crow," couldn't possibly demonstrate a single example where he has, but rather simply lies and asserts it in an effort to side-track the debate. He also doesn't know what "ad hominem" means: I attacked his lack of an argument and his consistently dishonest argumentation style, rather than him.)

Ted

By the way, EN, where do you get your hot beverages? The industry standard for coffee is hotter than the temperature McDonald's served Liebeck. Starbucks certainly serves it hotter than 180 degrees.

Aaron

And, in an increasingly standard display of mendacity, Ted responds to me while again claiming he doesn't respond to me? Maybe he believes his absurd, false claims about our past exchanges, but surely not even he can presently believe that he doesn't reply to what I post. If this is how he practiced law, it is no small wonder he quit.

Ted

I always enjoyed it when I would write in a brief "Plaintiffs cannot identify a single case where the court ruled X" and the other side would say "Defendants' position is absurd" instead of identifying a single case where the court ruled X. You know what they say about pounding the facts, the law, or the table.

Aaron

Yes, Ted - I'm sure we will all concede to your expertise on the subject of pounding tables. And thank you for finally conceding that, despite your invective and mendacity, you cannot cite even one example to back up your prevarications.

If this is what it looks like when you ignore me, Ted, what would it look like if you weren't?

Ted

Am I mistaken, or did a grown-up just essentially say "I know you are, but what am I?"

Matt

Oh Ted,

I do admire your persistence on behalf of your clients. You are a very effective PR man, and I would guess a pretty decent lawyer. Too bad you don't realize who really loses as a result of your efforts. Or maybe you do, who knows.


Aaron

(The last time I felt this ignored, she had a crush on me.)

Ted, the lesson of my last post is that you need to do a better job with your insults. Your churlish hypocrisy is too easy to deflect. I know you are; I know what I am not - and no matter how many times you try to lie about what I am, well, let's just say you don't fool me, you don't even seem to be fooling yourself, and I doubt that you fool anybody else.

By now, I would think you would put a bit less effort into proving me right in my ever-diminishing assessment of you, and a little bit more effort into redeeming yourself. But that might mean you would have to address substantive issues. Is it the weakness of your position that leads you inexorably into the gutter realm of ad hominem abusive?

Eh Nonymous

Matt: easy, Ted's defending his position with force and passion, and I don't think he's being hypocritical. The reason he's an effective advocate, as opposed to a transparent talking head (is that a contradiction? More, what's the web version of a talking head?), which he is not, is that he is really trying to argue with logic.

Aaron: I'm not sure why you are continuing, but it may be e-rage. Please stop.

At times like this, I like to recite an old piece of wisdom:

Never mud-wrestle with the pig. You don't accomplish anything, you get covered with mud, and the pig likes it.

I am accusing nobody of being a pig, nor of slinging mud, but it's entirely true and we should all learn to live by it.

I'm posting my apology to Walter and Ted over at my blawg, perhaps today or tomorrow, and I encourage anyone interested in polite exchanges and courteous discussions to come on over there and pile on. I'm eating crow, and I'm all out of hot sauce.

Matt

I didn't accuse Ted of being a hypocrite there. Disingenious? Certainly. Loose with the facts? Definitely. Willing to give the benefit of the doubt to his own side but not the other? Undoubtedly.

But that's what he gets paid for.

Aaron

It's pretty easy to figure out, EhN - this got started because I don't like it when people lie about me, and continued because I let my amusement at Ted's antics overcome my better instincts. Funny, your statement about the pig; before coming back here I had a similar thought about what happens when you tangle with a skunk.

mythago

Never mud-wrestle with the pig. You don't accomplish anything, you get covered with mud, and the pig likes it.

You show everybody watching how to properly handle a pig that is trying to wrestle you.

Moreover, none of your arguments even begin to justify punitive damages for hot coffee.

The arguments of the lawyers in the McDonald's case certainly did. (Though I would be interested to hear a defense lawyer admit that there is any situation, other than perhaps the Pinto, where punitivies can be justified.)

Ted

Punitive damages are justified for intentional torts like battery or horizontal price-fixing (and, indeed, in the latter case, the Sherman Act provides for an automatic trebling of damages). I'll even go out on a limb and say that current antitrust law underenforces horizontal price-fixing by condoning conduct that should be condemned. (Tying law and Section 2 is a disaster in the other direction, but that's a different story.)

Funny you should mention the Pinto, the source of one of the greatest urban legends about the tort system, one so pervasive that a California court bought it. See Gary Schwartz's Rutgers Law Review article.

The jury in the Liebeck case was instructed incorrectly, so the arguments of the lawyers in that case did not justify punitive damages.

Ted

EN: If X says Y's argument is dishonest, the way Y refutes this is to use logic and point out how his original argument is correct. Of course, if X was correct in the first place about Y's argument, and Y has no legitimate response, Y can always resort to the tactic of falsely claiming that the refutation of his original argument was an ad hominem attack and otherwise polluting the thread by burying it in irrelevant comments.

A poster in this thread made a false accusation against Walter Olson. The accusation was refuted, and the poster has since made five posts attacking me without even pretending to defend his original dishonest comments, dipping into self-parody by throwing around whiny (and incorrect) complaints of "ad hominem" at the same time he's using insults like "skunk." One will note that I've restricted my own criticisms to the arguments, which have been all noise, and no signal. If the poster is complaining about the lack of substance, the poster might try to examine his five consecutive substance-free posts to the thread.

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