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Tort reform? It's unconstitutional

There are many issues the tea party stands for, but the greatest is fidelity to the Constitution. The Constitution is an amazing document and one of the greatest documents of freedom and liberty ever written.

While the Republicans come down on the side of the Constitution much more often than the Democrats, there is one area where the Republicans are really off the reservation.

Federal tort reform.

Perhaps it is because the trial lawyers are such big contributors to the Democrats, but regardless of the reason, it flies in the face of the Constitution.

First, there is no authority in the Constitution for the federal government to take over an area of law that has always been governed by the states. There is also no provision in the Constitution that allows the federal government to impose price controls on one industry or even one segment of an industry.

Perhaps more importantly, it flies in the face of what the founders undoubtedly considered the most important of the constitutional rights, the right to a jury trial.

The Founding Fathers considered the jury trial to be so important that it is the only right in the Bill of Rights that is specifically enumerated in two amendments.

Many who favor the really bad idea of tort reform point to the McDonald’s hot-coffee case. It is such a part of modern folklore that Toby Keith even put a line, “spill a cup of coffee, make a million dollars,” in one of his songs.

The true story of the case is much different.

On Feb. 27, 1992, a 79-year-old Albuquerque, N.M., woman named Stella Liebeck went through the drive through of a McDonalds and bought a cup of coffee. At the time, McDonald’s guidelines called for their coffee to be sold at 180-190 degrees. McDonald’s believed that most people bought their coffee for a commute and would not be drinking it until later, and this was the best way for it to still be hot when the customer arrived at their destination.

One hundred ninety degrees is about 89 percent of the boiling point. Within seconds of contact, a liquid at that temperature scalds the skin, causing serious burns. Ms. Liebeck was in the passenger seat, and the driver pulled into a parking space so she could put cream and sugar in her drink. Somehow, she spilled the entire cup into her lap. She suffered third-degree burns over 6 percent of her body, including her thighs, buttocks and genitals. Third-degree burns are the type that destroy skin and require surgery and often skin grafts to repair. Ms. Liebeck was hospitalized for eight days and was forced to undergo skin graphs to repair the damage.

Ms. Liebeck hired an attorney and initially asked McDonald’s for $20,000. This was to cover her medical expenses of $10,500. It was also to cover estimated future medical expenses of $2,500 and about $5,000 that she had in lost wages. McDonald’s refused her offer, and the case went to litigation.

During the course of a jury trial, the jury was informed that not only did other restaurants serve coffee at a significantly lower temperature, but McDonald’s had received about 700 complaints from people who had suffered burns as a result of spilling their coffee. McDonald’s had basically decided they would ignore the burn claims and continue selling very hot coffee. The jury also heard the scientific evidence about the damage a scalding hot liquid causes to skin.

In the end, the jury decided that Ms. Liebeck was partially at fault for the accident, so the damages award was reduced by 20 percent to $16,000. Ms. Liebeck asked for punitive damages, and the jury, after considering the evidence, awarded punitive damages of $2.7 million, or the equivalent of two days of profit McDonald’s receives from its coffee sales.

In post-trial motions, the judge reduced the punitive damages to $480,000. In the end, McDonald’s settled the case, and the details were kept confidential.

The free-market system is a wonderful system. It promotes good behavior and punishes bad behavior. McDonald’s chose to sell its coffee at a temperature that caused injuries to people so it would make more money. The jury sent McDonald’s a message, and today McDonald’s does not sell its coffee at 190 degrees.

This is just one example why tort reform is a bad idea. The civil justice system is a strong part of the free market. Freedom and liberty are not possible without the free market, and tort reform closes the only door many people have to getting their day in court.

Judson Phillips is the founder of Tea Party Nation. Follow him on Twitter.