The National Trial Lawyers Announces Milton S. Goff, III as One of Its Top 100 Civil Plaintiff Lawyers in Kentucky
For Immediate Release
The National Trial Lawyers is pleased to announce that Milton S. (“Chip”) Goff, III, founder of the Law Office of Milton S. Goff in Florence, KY has been selected for inclusion into its Top 100 Kentucky Civil Plaintiff Trial Lawyers, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers representing Plaintiffs in civil cases.
The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications throughout their career. The National Trial Lawyers provides accreditation to these distinguished attorneys, and provides essential legal news, information, and continuing education to trial lawyers across the
United States.
Milton S. Goff’s selection by The National Trial Lawyers: Top 100, exemplifies his superior qualifications, leadership skills, and civil results as a trial lawyer. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Trial Lawyers: Top 100 is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding trial lawyers chosen to represent their state or region.
To learn more about The National Trial Lawyers, please visit: http://thenationaltriallawyers.org/.
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Reasons Why Insurance Adjusters Deny Your Auto Injury Claim
By Milton S. Goff, Attorney at Law
April 18, 2020
There are numerous justifiable reasons why an insurance adjuster will reasonably deny your claim. But many denials happen simply because the inadvertant actions of the injured person. This article discusses some of the common scenarios that lead to or assist an adjuster in the denial of the auto injury claim.
1. You Gave a Statement Before Consulting an Attorney
You believed the insurance adjuster when he or she said they wanted to help you and needed a statement from you to move your claim along. In the spirit of cooperation, you gave the adjuster the statement. There are some very good adjusters that mean just that, but many who make this statement just to gather information to use against you. One of the biggest mistakes is giving this statement before you consult with an attorney.
When giving a statement, listen to the question and answer only that question. If you were sitting at a stop light and was rear-ended by the at fault driver, when asked how did the accident happen, say just that. Do not say: "I was looking down at my phone and I looked up and saw the light was green. I do not know how long it was green but I guess it had been green for a while because as I started to proceed through the light it turned yellow and I slowed down because I did not know if I could make it through the yellow light, then I was hit from behind." This long-winded answer may be accurate, but so was the first short answer. The second answer gave the adjuster a reason to question liability or at least apportion some of the fault on the injured driver. Giving a statement may not be avoidable. However, avoid giving any statement to an adjuster unless your attorney is present.
2. No Accident Report
Do not trust that the at fault party will do what he or she says he or she will do. Often times, minor collisions result in serious injuries. The at fault party admits to you how the accident happened and he or she was at fault. You exchange information with the at fault party and he or she says they will turn it into the insurance company; but they don't. When you contact their insurance company the company either did not know about the accident or has a completely different version of how it happened. The lack of an accident report lends credence to the at fault driver's version of the accident events.
An accident report prepared by apolice officer is important for many reasons. The accident is documented by an independent thrid party who, in some cases determines who may be at fault. In Ohio, a responding police officer will likely cite the at fault party. In Kentucky, the officer investigates the accident and uses codes in the accident report that assists in the determination of fault. Insurance companies may still argue liability or your damages even with an accident report, but it is much more difficult.
3. No Independent Witnesses
Just like the old saying If a tree falls in the forrest and there is nobody there to see it fall, did it make a sound? I have argued with adjusters who believe that absent an independent witness to see the accident, that is a witness who has no connection to the injured party, the accident didn’t happen the way the injured person says it happened. I have heard that even when the accident was a rear-end collision. The lack of a witness is out of your control. This is another important reason you need to be sure to call the police and get an accident report. The at fault driver is less likely to lie to a police officer while at the scene of an accident.
4. Failing to Obtain Medical Treatment or to get Timely Medical Treatment
Adrenaline is flowing throughout your body immediately following an accident. The realization of pain may not be existent at that time. However, the next day you may be sore or can barely walk. It may be sometime after the accident that you go to the hospital or see a physician. However, adjusters often think that your failure to recognize the pain at the scene of the accident and seek immediate medical attention, is a sign that you must not have been injured. This observation is of course obsurd. There are many reasons why an injured party fails to seek medical attention immediately following the accident: the injured person has a job and must wait until the end of the work day to see the doctor or he or she does not have health insurance or has a very high deductible and cannot afford to go to the doctor. Please be sure to avoid this pitfall. Although you still have a claim, seek medical attention as soon as possible. Medical treatment is a necessary part of a personal injury claim. Take away this reason for an adjuster to deny the claim by seeking prompt medical attention. If you do not seek it timely, this will haunt you throughout the claim and even into litigation. Don't allow the defense attorney to argue to the jury that "If he was hurt like he said he was, why didn't he go to the doctor right after the accident instead of waiting a month?"
Remember in Kentucky, your auto insurance company must pay for the first $10,000 in medical bills regardless of fault. This is known as Personal Injury Protection ("PIP"). You just need to show the treatment received was related to the automobile accident. In Ohio, there is no requirement for your insurance company to pay for your medical bills, unless you purchased Medpay. Without purchasing Medpay, it is the responsibility of the at fault driver to pay for medical expenses after your first prove fault.
5. Not Following your Doctor's Medical Advice.
If you seek prompt medical attention following the accident, but fail to follow the treating physician's medical advice, it is as bad as not seeking treatment at all. Adjuster will argue, along with the insurance company's attorney, that your condition, if caused by the accident, was made worse because you did not follow your doctor's medical advice. They will review the medical records for missed appointments, resceduled appointments, and gaps in treatment and argue you are not hurt as you claim to be.
Insurance companies will hire doctors that they call Independent Medical Examiners ("IME"). These doctors are licensed physicians who review your medical records and most of the time meet with you and perform a cursory physical examination. Sometimes these IME physicians are retired physicians or physicians that have stopped practicing medicine for whtever reason. Gaps in medical treatment and failure to follow your treating doctor's medical advice is fodder for these not so independent physicians to support the opinion they are paid to give. The IME physician gives an opinion on your medical status. Sometimes these IME physicians do support your treating physician, other times they do not. Regardless of what you might think of the IME physician, Juries often like them and believe them over your own treating physician. The moral of this story is to follow your doctor's advice.
6. You did not hire an Attorney
Insurance adjusters are trained professionals. They are trained how to gather information to input into their claims handling software so they can settle claims as quickly as possible and for as little as possible. They will often make an offer to settle your case as soon as possible after the accident and before you have a chance to seek proper medical attention or legal advice. I have heard of adjusters telling clients "Accept this amount and you will not have to hire an attorney and pay most of it to the attorney." I have represented clients that have received thousands more by hiring an attorney than what was initially offered by the adjuster.
When you're not in good hands, with your insurance company, it's not a good neighbor, and it's not on your side: What can you do when your insurance company does not live up to it slogan?
By Milton S. Goff, III Attorney at Law
April 10, 2020
Insurance is a necessary evil. The law requires it in some circumstances and if you want to purchase a home, a condidtion of the loan or mortgage is to purchase an insurance policy. The purpose is to protect you and those who have an interest in the property. You expect that in exchange for the monthly payment of your premiums, your insurance coverage will be there when you need it, especially when your insurance company tells you its "Like a Good Neighbor," "You’re in Good Hands" and it is "On Your Side." These slogans expressed every day by State Farm, Allstate and Nationwide Insurance Companies are not always lived up to. So what happens when your insurance company does not live up to its advertised slogan?
When an insurance company fails to fulfill its obligations to its insured, the insurance company acts in “bad faith.” If the breach of the obligation is directly against the insured, its is known as first party bad faith because the insured is a party to the insurance contract. For example, the insured's house burned down but for no justifiable reason, the insurance company denies the claim.
It is known as third party bad faith when a party is responsible for damages to another person and the liable person's insurance company refuses to negotiate with the injured party. For example, an insured rear-ends another person and causes bodily injury. The insurance company for the insured person refuses to value the claim and negotiate with the injured person to arrive at a reasonable settlement.
States like Kentucky also have statutory bad faith where the state's legislature has passed a law setting forth certain acts by insurance companies that are prohibited. Kentucky's statutory bad faith law is known as the Unfair Claims Settlement Practices Act. When an insurance company commits third party bad faith, it may ultimately risk its own insured's well being by subjecting their insured to an excess verdict. An excess verdict is a judgment against the insured that exceeds the amount of coverage of the insured's insurance policy. Thus the insurance company's actions failed to protect its insured and could be construed as a first party bad faith claim.
The Kentucky Unfair Claims Settlement Practices Act (KUCSPA) is codified in KRS §304.12-230. There are several acts that may be considered “unfair practices.” The KUCSPA provides, that “it is an unfair claims settlement practice” to:
1. Misrepresent pertinent facts or insurance policy provisions relating to the coverage at issue;
2. Fail to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
3. Fail to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
4. Refuse to pay claims without conducting a reasonable investigation based upon all available information;
5. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed
6. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably
clear;
7. Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the
amounts ultimately recovered in actions brought by such insureds;
8. Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;
9. Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured;
10. Making claims payments to insureds or beneficiaries not accompanied by statement setting forth the coverage under which the
payments are being made;
11. Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose
of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
12. Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary
claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain
substantially the same information;
13. Failing to promptly settle claims, where liability has become reasonably clear, under one (1) portion of the insurance policy coverage in
order to influence settlements under other portions of the insurance policy coverage;
14. Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for
denial of a claim or for the offer of a compromise settlement;
15. Failing to comply with the decision of an independent review entity to provide coverage for a covered person as a result of an external
review in accordance with KRS 304.17A-621, 304.17A-623, and 304.17A-625;
16. Knowingly and willfully failing to comply with the provisions of KRS 304.17A-714 when collecting claim overpayments from providers;
or
17. Knowingly and willfully failing to comply with the provisions of KRS 304.17A-708 on resolution of payment errors and retroactive denial
of claims.
The 17 Paragraphs outline a statutory bad faith case under Kentucky law. The facts of the case are important and are necessary to show a violation of any one, if not multiple portions of the statute.
Bad Faith or violations of the KUCSPA are not easy cases. The Kentucky Supreme Court has ruled that to prove bad faith whether it is common law bad faith or a violation of KUCSPA, the plaintiff must show the following:
1. The insurance company must be obligated to pay the claim under the terms of the policy;
2. The insurance company must lack a reasonable basis in law or fact for denying the claim; and
3. The insurance company either knew there was no reasonable basis for denying the claim or acted with reckless disregard for whether
such a basis existed. (See, Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993))
Recently, the Kentucky Supreme Court upheld a $3.425 million verdict against Indiana Insurance Company despite the insurance company defending its insured and paying the claim thus showing bad faith can still be found even where the insurer substantially performs as required. Indiana Insurance Co. v. Demetre¸ 527 S.W.3d 12 (2017). In this case, James Demetre owned a parcel of land where a gas station once stood. Mr. Demetre increased his insurance coverage with Indiana Insurance in 2008 to cover the property. The insurance agent knew that the property had once been a gas station, but did not inform the underwriters, who issued a policy for residential real property. Soon after he obtained the insurance, a neighbor began complaining of health issues relating to the property and filed suit against Mr. Demetre.
Indiana Insurance believed the neighbor's claim was without merit and it also did not agree that the policy covered the claim because it was not really residentisal real property. However, Indiana Insurance represented Demetre under what is called a “reservation of rights.” This is where the insurance company agrees to provide legal representation for the insured but may not pay the claim if the insured does not prevail at trial. Despite the reservation of rights and providing legal counsel to represent its insured, Indiana Insurance did very little to defend the claim against Demetre.
Indiana Insurance focused most of its efforts in a cross claim against Demetre accusing him of violatind the policy or failing to disclose crucial information to the sgent. Despite this fight, Indiana Insurance ultimately settled the claim that the neighbor brought against Demetre for $165,000. Despite its representation of Demetre and paying the claim, Demetre sued Indiana Insurance for bad faith for breach of his insurance contract and was awarded $2.5 million in punitive damages and $925,000 in compensatory damages for emotional distress.
Another major take from this case was Demetre did not have medical testimony to support his claim that he suffered emotional distress. Kentucky's highest court held that expert testimony is not necessary to substantiate damages for emotional distress in a bad faith case. So, it is clear in Kentucky that an isurance company may challenge its insured if it feels it has been taken advantage of and it can choose to sue its insured in court. However, if it chooses to represent the insured under a reservations of rights, the insurance company must provide an ethical and zealous representation of the insured. Here Indiana Insurance did not.
on to the above, bad faith claims are often accompanied by claims for breach of contract, fraud, and violations of the Kentucky Consumer Protection Act. Sometimes, cases involve multiple insurance carriers and/or companies working on behalf of insurance carriers (such as excess insurance providers or third party administrators).
Though insurance agents are not traditional parties to “bad faith” cases based upon the handling of a claim, insurance agents and/or brokers are responsible for complying with legal and contractual duties. Insurance agents are liable for errors and omissions and for any breaches of “fiduciary duties”. Insurance agents owe “fiduciary duties” of integrity, honesty, full disclosure, loyalty, and good faith. Agents must take time to understand your financial needs and the products they sell. Insurance agents have an interest in the success of the insurance company they represent. But, insurance agents are also obligated to protect your interests. If your insurance agent puts the interests of the insurance company above your interests, your insurance agent can be liable for breaching their promise to protect you.
Long and short, insurance companies make money by holding onto their money. Without “bad faith” law and other law regulating unfair insurance practices, there would be no way to enforce the promises insurance companies make in exchange for your money. You pay for a service, and you deserve to get what you pay for.
If an insurance company failed to fulfill its promise in handling your claim, contact the law office of DeCamillis & Mattingly, PLLC at (502) 589-2822. Help us make sure insurance companies keep their promises.
Economic Damages
By Milton S. Goff, III Attorney at Law
March 1, 2020
If you were injured in an accident that resulted from another person’s negligent behavior, you may be eligible to pursue compensation for damages. The types of damages are classified as economic damages and non-economic damages.
Economic damages are damages that can be calculated from records or other forms of documented proof. Economic damages usually involve past, present, and future medical expenses, lost wages and earnings, future lost earning capacity and profits as well as damage to a person’s real and personal property, such as a damaged vehicle.
The Law Office of Milton S. Goff has the experience needed to determine the true value of your case. You can schedule a free consultaion of your case today.
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Non-Economic Damages
By Milton S. Goff, III Attorney at Law
March 1, 2020
Non-economic damages are intangible harms, such as pain and suffering, physical and emotional distress, disfigurement, and the loss of the enjoyment of life, companionship or society.
The dollar value of non-economic damages are is subjective, as distinguished from economic damages such as medical bills, future medicals, and lost wages which can be calculated based upon documented proof, often called "special damages."
The Law Office of Milton S. Goff has the experience needed to determine the true value of your case, which includes non-economic damages. You can schedule a free consultaion of your case today.
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Punitive Damages
By Milton S. Goff, III Attorney at Law
March 1, 2020
Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.
Only certain types of cases permit an award of punitive damages. Simple negligence claims do not warrant a jury award of punitive damages. There must be facts to show the Jury that the defendant was grossly negligent, acted with a reckless disregard for the safety of others, or they acted with malice.
A negligence lawsuit for a simple auto accident where the defendant rear ended the plaintiff generally does not warrant a jury verdict of punitive damages. However, if the defendant was drunk or driving recklessly at a high rate of speed, a punitive damage award may be justified.
What is my case worth?
Valuing an Injury Claim IS NOT AS EASY AS YOU MAY THINK!
By Milton S. Goff, III Attorney at Law
March 29, 2019
What is my case worth? In more than 20 years of experience, this is the question most often asked by clients, jurors, and the general public. Neither the client nor the jury is experienced in determining the true value of their case. Often, clients only know what they would like to recieve, which is sometimes much less than the value of the case and other times can be more than the potential value.
Juries also have this problem. We have all heard of "runaway juries" where the jury awards enormous verdicts with little to no evidence. However, these "runaway verdicts" are actually few and far between but get the most press and arguments from insurance companies claiming a need for tort reform. The facts behind these "runaway verdicts" are often intentionally hidden by the media, causing unwarranted assumtions that there is a problem with the system justifying caps on damages. Remember the McDonald's hot coffee case? In 1992 a jury awarded $2.86 Million to a 79 year-old woman who spilled hot coffee between her legs. The media claimed this was a frivolous lawsuit but really did not explain the facts leading to such an award. This case was even poked fun of by Jerry Sienfeld in an episode of his very funny show, "Sienfeld." I am amazed that still today, more than 25 years later, people focus on the McDonald's case when discussing frivoulous lawsuits. During the voir dire stage of a lawsuit, when I ask potential jurors about their opinions on lawsuits, potential jurors often reference this case. But when the true evidence and facts are discussed, those very jurors admit they never knew the true facts of the McDonald's case. (See my discussion of the McDonald's Hot Coffee Case also on this Blog)
Proper Method To Value the Case
I have represented injured persons who have wanted millions when their injury was minimal. Unrealistic expectations are problematic. Valuing a personal injury case is a multifaceted process requiring experience. It is comprised of a combination of economic and non-economic damages and sometimes punitive damages. Other considerations for valuing a case are the facts of the case and how the accident happened. How the injury affects your life, future and family? Were you in prior accidents or had you suffered from the same injury in the past? What pre-existing injuries do you have? Did you follow your physician's medical advice? The jurisdiction where the injury occurred plays a role, is it a liberal jurisdiction or a conservative jurisdiction?
All of these facts must be taken into consideration because they all have an effect on the value of the case. The attorney you hire must have the necessary experience to properly assess the case value or you may leave money in the insurance company's or defendants' pocket.
Multiplier Method - Wrong Way
Attorneys and/or injured parties sometimes use a multiplier of the medical or spectial damages to come up with a value of a case. It is my opinion that this is the WRONG WAY to determine the case's value. This method fails to consider how the injury has affected the injured person, the pain the person experiences, and the costs of necessary future treatment. The multiplier factor; 2 times damages, 3 times damages or 5 times damages, etc., is just too subjective. Insurance companies use sophisticated, proprietary computer programs that are designed to put a value on a case using complex mathematical formulas, but still undervalue claims. Thus, a simple third grade math formula is not the best way to determine the value of your case. This multiplier method feeds insurance companies' methods of value calculation because like the sophisticated computer programs, the multiplier method ignores how the medical injury truly affects your life.
Insurance Companies' Method of Valuing a Claim - Wrong Way
In the 1990s, the personal injury claim software initially used by Allstate Insurance Company was known as "Colossus." Colossus is still popular and used by other insurance companies as well. Other insurance software used by claims adjusters includes "Decision Point", "MedBill Helper" and "Outcome Advisor."
These computer software programs are based on formulas that are more sophisticated than merely multiplying medical bills by a subjective multiplier factor. The software calculates claim value by assigning points to various “value drivers” associated with an injury. Evaluations are based on the formula variables representing the injury diagnosis, reported symptoms, treatment specifics, need for future treatment, and many others. This may sound very detailed, but claims adjusters control the information input into these programs, thus controlling the value. The adjuster can input only the information that will result in the lowest settlement amounts. Although the mathematical formulas used in the claim value programs are more sophisticated than the multiplier method, the insurance companies that use these programs can artificially drive down injury values by only entring basic data located in medical records and bills.
It may be comforting to you when you speak to an adjuster and they want to know how you are doing; how the accident happend; what type of treatment you need, and then tell you that they are there to help you. From your first contact with the adjuster through the entire claims process, you and/or your attorney will often describe to the adjuster symptoms such as back pain, headaches, scarring or other symptoms and injuries and how they are affecting you and your everyday activities. However, none of that important information goes into the actual computer evaluation. The only data actually entered into the claims evaluation software is that which medical providers write down and code properly. If you can’t sleep due to pain, can’t lift a gallon of milk or carry your child due to your injury, none of that is input into the computer evaluation unless the medical provider writes it down clearly in the medical records, and only if the adjuster chooses to input it into the system.
Also, an often underlooked factor is the attorney you hire. Hire an experienced attorney to value your case, one who knows how the insurance companies value claims. The Law Office of Milton S. Goff has the necessary experience to determine the value of your case. You can schedule a free consultaion of your case today.
Liebeck v. McDonald's Restaurants, also known as the McDonald's
hot coffee lawsuit
By Milton S. Goff, III Attorney at Law
June 1, 2018
In 1992, 79 year-old Stella Liebeck became the poster child for frivolous litigation after filing a lawsuit against McDonald’s for serving coffee that was too hot. The public, comedians, and even sitcom T.V. shows ridiculed Ms. Liebeck. The media headlines told the story of a New Mexico woman who spilled a little coffee on herself while she was driving, sued McDonalds, and cleaned up with a nearly $3 million jury verdict.
Insurance companies jumped on the false reporting of the facts of Ms. Liebeck's case to support their platform for tort reform and caps on jury verdicts. They have spent years spreading false and negative propaganda and slanting the facts of this case for the sole purpose of convincing the general public, or future jurors, to turn against the idea of corporate lawsuits, medical malpractice claims, or any type of injury claim altogether. Sadly, more than 25 years has passed and the ongoing mockery of Liebeck's case demonstrates this false reporting continues to sway opinion and to pull the wool over people's eyes concerning the actual facts.
As my dad once said to me, "You are entitled to your own opinion but you are not entitled to your own facts." The facts are what tell the story. What really happend relating to Ms. Liebeck's severe injuries? How Ms. Liebeck's spill unfolded is widely reported incorrectly and misunderstood. She was not driving a car when she was burned. In fact, she was a passenger in the car and the car was not even moving. She was a passenger in her grandson's car and they were taking her son to the airport. On the way home from the airport, her grandson pulled into a McDonald's drive-thru for breakfast. He parked the car so Ms. Liebeck could add cream and sugar to her coffee. Ms. Liebeck put the cup between her knees and removed the lid. The Styrofoam cup fell back, the lid flipped off, and the scalding hot coffee spilled onto Ms. Liebeck's lap, saturating the sweatpants she was wearing. Her grandson tried to come to her resue, but the near-boiling coffee had already seared and burned her skin. By the time he was able to get her to the emergency room, Ms. Liebeck had suffered the worst form of burn one can receive, third degree burns. These third degree burns were across her groin, thighs, genitalia and buttocks. Ms. Liebeck was badly injured and, in fact, almost died. She underwent multiple surgeries which included skin grafts to help the damaged areas heal.
Ms. Liebeck's complaint was the coffee McDonald's was serving to its customers was entirely too hot for human consumption. She did not blame McDonald's for the cup tipping over and spilling onto her lap. In fact, she accepted responsibility for that., a fact not reported by the media or big corporations. All Ms. Liebeck requested from McDonald's was payment of her medical bills, which was in the neighborhood of $20,000. McDonald's said no and offered her only $800.
During pre-trial litigation and the jury trial, several interesting facts were discovered that were not discussed by the mainstream media. Prior to Ms. Liebeck's case, for more than a decade McDonald's had received in excess of 700 complaints from its customers who had suffered burns from the coffee. Some of these claims involved full-thickness burns similar to those suffered by Ms. Liebeck. These previous claims showed that McDonald's knew, or should have known, about the danger associated with the high temperatures of the coffee it was serving.
Despite denying that its coffee was too hot for human consumption, McDonald's admitted that it kept its coffee temperature between 180 and 190 degrees Fahrenheit, and this was a requirement documented in the McDonald's Operating Manual. At this temperature third degree burns would occur in a matter of seconds. McDonald's own internal research showed that most of its customers drank the coffee while still in their car. However, in justifying the high temperature, McDonald's claimed that customers intended to consume the coffee after they got to work or home and by that time the coffee would have cooled down. The evidence presented to the jury at trial showed that McDonald's hired a consultant who opined that its coffee needed to be brewed in excess of 180 to 190 degrees for the best taste. McDonald's then admitted that they had not studied the dangers associated with these high temperatures.
It was found that other fast food restaurants did not serve their coffee at these high temperatures. Other restaurants sold their coffee at significantly lower temperatures and coffee served by people in their homes was in the 135-140 degree range. There was expert testimony from the chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas indicating that this risk of harm was unacceptable, as well as evidence from the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty of burns about the harmful effects of scalding liquids at these temperatures. One of Ms. Liebeck’s experts was an engineer specializing in thermodynamics. He testified as to the temperature of the coffee and how it would affect the skin if the coffee was at near or boiling temperatures. He testified that liquids at 180 degrees would cause a full-thickness burn to human skin in two to seven seconds. As the temperature of the liquid fell to 155 degrees, the likelihood of a burn injury would fall exponentially. If the coffee served to Ms. Liebeck was 155 degrees, it would have cooled enough to avoid a significant injury when she spilled it.
McDonald's defense was not as compelling. McDonald's did a cost-benefits analysis and its expert witnesses testified that the number of burns Mcdonald's customers experienced were insignificant when compared to the billions of cups of coffee McDonald's served each year. They argued that their customers knew the coffee was hot and that was the way they wanted it served. McDonald's also argued there was a statement on the side of the cup that was a “reminder” that the coffee was hot, but admitted the writing on the cup was not located in a position to serve as an actual warning. McDonald's also admitted that the customers were not aware that the coffee being served could cause such harmful full-thickness burns if it contacted the customer's skin.
The most damaging testimony against McDonald's came from its own quality assurance manager. He testified that McDonald's required their restaurants to keep the coffee pot temperature at 185 degrees and admitted that a burn risk existed for any food (or drink) served at over 140 degrees. He further testified that the coffee poured into the McDonald coffee cups was not fit for consumption since it was well above that temperature, and burns to the mouth and throat would occur if the consumer drank the coffee at that temperature. He also stated during the trial that McDonald's had no plans to reduce the temperature of its coffee.
The only people who view all of the facts of a case in an independent and objective manner are the jurors. Plaintiff and defense attorneys who are involved in the case have an obligation to zealously represent their clients and are not independent, no matter how objective they try to be. What is reported by the media, marketing groups, insurance companies, polictical action groups, etc., are only certain facts necessary to support their agenda and they construe those facts in a manner to support that agenda.
There are many organizations that lobby state legislatures for tort reform and this case was and still is its poster child. Since this case, "tort reform" advocates have set up dozens of tax-exempt groups in at least 18 states (currently there are 26 active groups) with consumer friendly names like Citizens Against Lawsuit Abuse, Stop Lawsuit Abuse, Lawsuit Abuse Watch, and People for a FAIR Legal System. These groups are known as "CALAs." While CALAs represent themselves as grass-root citizens groups, and they say they are sustained by small donations from ordinary citizens, they are far from grass root, run of the mill, everyday citizens. These so-called citizen groups represent major corporations and industries seeking to escape liability for the harm they cause consumers. The money trail from these groups leads directly to large corporate donors, including insurance, tobacco, oil and gas, chemical and pharmaceutical companies, medical associations, and auto manufacturers. They are also funded by the American Tort Reform Association (ATRA), as well as professional associations, businesses and industries that also wish to be shielded from consumer lawsuits. These groups are not ordinary citizens and they surely are not interested in fair justice. If they were, they would explain to the public all of the facts as presented to the Liebeck "Runaway Jury."
For Ms. Liebeck, one juror told the Wall Street Journal that she thought McDonald's wasn’t taking the 700 prior complaints or Ms. Liebeck's injuries seriously. She said “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.” This Jury's verdict expressed to McDonald's that its profit over people attitude toword common everyday citizens was not acceptable. Ms. Liebeck passed away on August 5, 2004 at the young age of 91.
The Kentucky Supreme Rules on Spousal Loss of Consortium
In October 2009, the Kentucky Supreme Court rendered a unamimous decision recognizing spousal loss of consortium in wrongful death cases. The court's decision allows the spouse of a person killed by the negligence of another to seek compensation for the loss of companionship provided by a spouse. Prior to this ruling, Kentucky was one of only four sates that did not recognize spousal loss of consortium in wrongful death cases.
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