I don’t really have time for this. I have two briefs due this week. The first is an opposition to a motion for summary judgment in a product liability case. The second is a reply brief in our consumer fraud class action against BP for failing to disclose debit card charges to Oregon gas purchasers. And if that’s not enough, I have legislative meetings this week on consumer legislation that would help end insurance abuses by covering Oregon insurance companies under the Unlawful Trade Practices Act.
All of that is an over-long explanation of why this post is going to be quick and somewhat dirty. Too many things.
So on the Twitter, I wandered into a conversation–if you can call it that–between Nicole Augenti (@Nicole1515), a Connecticut trial lawyer, and Ted Frank, @tedfrank*, a lawyer who I understand devotes most of his practice to objections in consumer class actions. Ted also blogs at the Manhattan Institute’s Point of Law blog, a blog that is supported by the Manhattan Institute, a well-known corporate-funded think tank devoted to re-design of the U.S. civil justice system to make it more corporate friendly. “Corporate friendly” is a euphemism. These smart people reportedly funded by the Koch brothers and a number of large corporations are bent on destroying the civil justice system through radical restrictions of the right to trial by jury.They do so through a number of initiatives, with allies like The Federalist Society, think tanks, blogs, coordinated message points, etc.
They are doing this through “tort reform”–an insidious notion that they know better than juries whether corporations should be held responsible when they misbehave. They are doing so through mandatory arbitration to ensure that consumer and employee claims never make it into the courtroom. And they are doing it through allied media and public relations firms.
So against this backdrop, Mr. Frank is called out for this particularly inane blog post. Ms. Augenti comically tweets: “So, Ted Frank (TORT REFORMER!) is mad he can’t sue for penis zipper injuries?? http://www.pointoflaw.com/archives/2013/03/zippers-and-mcdonalds-hot-coffee.php … ” The Twitter back and forth starts with a very smart, accomplished intellectual of the caliber of Ted Frank accusing Ms. Augenti of illiteracy and wondering whether she isn’t a walking malpractice trap.
But the point, which he doesn’t want to address, is how messed up Mr. Frank is on the law of product liability. He is too busy taking swipes at another pal of mine, Susan Saladoff, for her seminal work on the great documentary, Hot Coffee, the Movie.
So now let’s get to the errors of Mr. Frank’s analysis. That’s why I am writing this, after all.
According to Ted Frank, if Stella Liebeck, the consumer in the McDonald’s case, can sue because she burned herself on hot coffee, so can men who suffer injuries to delicate organs (informally referred to as the Johnson, the little brain, the schlong; more formally known as the penis) when using zippers.
How does Mr. Frank get to the schlong injury claim? He oversimplifies and misstates the law of product liability. According to Mr. Frank, Susan Saladoff, who had a great run as a capable Oregon trial lawyer, advances the theory that product liability claims exist anytime someone or many people get injured by a product. He knows that he has oversimplified Susan’s point. She doesn’t say that.
What Mr. Frank ignores is that the consumer must prove that a product is unreasonably dangerous to pursue a product liability case. “So coffee is hot and everyone knows that,” is the prevailing knock on the McDonald’s case. What people don’t realize is that the coffee temperature was not hot, it was HOT. McDonald’s sold it at a temperature that caused major, horrible burns when spilled on humans. And they did it knowing that this was a problem, based on the hundreds of prior injuries.So it’s not that coffee can burn, but that McDonalds set the temperature at an unexpected and unreasonably high temperature that is a danger.
And now Mr. Frank wants to talk about zipper injuries to the schlong. So let’s talk. Here is how it works. If the manufacturer sells a dangerous product and the danger could be eliminated by design, then the manufacturer is responsible. After all, it is up to manufacturers who profit from selling products to take steps to avoid needlessly injuring consumers. I assume even the Manhattan Institute agrees with that basic principle, but maybe I am wrong.
So if a manufacturer uses razor sharp edges on his new, hip jeans, and Mr. Frank slices off his Johnson, he can sue. I imagine every guy would agree that such an injury would be horrifying…. But apart from the sensitive topics, the consumer–here Mr. Frank–must prove that the product was dangerously defective, usually by design. Mr. Frank knows this. He simply does not like that such cases exist.
Worse, he chides Saladoff and those of us who dare to call out corporations for misconduct by misstating what we must do to prove our cases. It’s not enough to show that 700 or thousands are injured while using a product. While that fact is interesting, and it may bear on what the corporation should have known, it does not prove the case. The 700 instances in McDonald’s coffee litigation was part of the factual showing, but if that’s all that was proved, the case would not have gone to the jury.
Two things gall me about the Manhattan Institute and their ilk. First, they invariably think they know better than juries. Ted Frank is a smart guy. I mean that genuinely and in a non-snarky fashion. He is accomplished, well-educated and highly credentialed. That said, he is not smarter than a jury. No single person is.
I say that as someone who has won and lost case. I’ve won very big verdicts, and I’ve lost in heartbreaking fashion. But at the end of the day, I am prepared to accept the judgment of the jury. That was the genius of our founders. It is what is enshrined in the Seventh Amendment. In my experience, those who try cases on both sides recognize the wisdom of the jury. This is true of my colleagues who represent corporations in the courtroom.
Along those lines, I would be surprised if Mr. Frank or anyone else at Point of Law has much jury trial experience. (Open invitation: Please let me know if I am wrong.) But even so, they are smarter than juries?
I said there were two things that galled me. The second is something I’ve seen many times in the decades in my law practice. A person is injured, a consumer is wronged, a family is harmed. The injury may be a result of something as simple as a dangerous, inattentive driver causing a wreck, or a corporation wrongfully taking money to which it not entitled. Or it may be something as complicated as injury from toxic chemicals. The injured person often looks at me and says, “Well, I’m really injured, not like so many of those people you hear about….” I try to remain neutral and gracious and ultimately attribute it to an old adage: Comedy is when you slip on a banana peel; tragedy is when I slip on a banana peel.
So all this is the long answer to Ted Frank and why from time-to-time he gets push back from me on Twitter. Ted is obviously a true believer. But he is wrong to believe that he knows better than the founders who gave us the Seventh Amendment and more than a group of jurors who listen to the evidence and render decisions.
*Was going to provide a link to Ted Frank’s Twitter feed, but apparently he blocked me. Sadz, as the kids say.