Volume 27, Number 2

Tort Reform: An Agent to Undermine Our Democracy

Fred Schepartz

As I mentioned last issue, I’m back in school as a paralegal student at Madison Area Technical College. Last semester, as part of an extra credit assignment for one of my classes, I saw the documentary Hot Coffee. I heartily recommend this film, which outlines the so-called “Tort Reform Movement” that, in reality, is an effort by corporations and big business to make it as difficult as possible for ordinary people to seek relief through the judicial system if they are harmed.

The film opens with the suit against McDonald’s where an elderly woman was severely burned when the top popped off her to-go cup, and scalding hot coffee spilled onto her lap.

I remember this case. Mostly, I remember how it became a national joke. Late-night comedians lampooned the old woman, accusing her of exaggerating her injuries or even spilling the coffee on herself.

Nothing could be further from the truth. The old woman suffered horrible burns. In Hot Coffee we see the hideously graphic photos documenting her injuries. And McDonald’s was indifferent to her injuries as well as the threat posed by their practice to store brewed coffee at 190 degrees.

The old woman only sued because McDonald’s was unwilling to fully pay her medical bills. And it came out during the trial that McDonald’s knew that numerous people had been burned by spilled coffee and never did anything to correct the problem.

The jury awarded the plaintiff $2.7 million in punitive damages, a calculation based on, I believe, three days of coffee sales. As is the case with punitive damages, the jury chose to punish McDonald’s for its negligence.

Despite the fact that the judgment was far from excessive, the business community was immediately and utterly apoplectic. One could imagine a rending of garments in corporate boardrooms all across the county.

Unlike you and me, corporations and big business have the resources to fight against something they view as a threat. Thus, the “Tort Reform Movement” was born.

But before we go any further, let’s clear up one thing:

What is a tort?

Very simply, it is a wrong committed by one party against another where there may be a recovery of damages. The civil court system is the arena where torts are resolved. In a society where the rich and powerful feel like they can do whatever they want, the civil court system is a means for those lacking wealth and power to find some form of justice, if not equality.

Remember that when you hear some businessperson or politician say that “frivolous lawsuits” are ruining our economy.

That is one of the primary smokescreens of the tort reformers.

Shortly after the McDonald’s judgment, big business lobbied Congress to pass a bill that would make it more difficult for individuals to sue. President Bill Clinton vetoed that bill.

As portrayed in Hot Coffee, Plan B commenced as corporations and big business attempted to get what they wanted at the state level. The U.S. Chamber of Commerce got heavily involved. Phony “citizen” groups spread propaganda. This is where the term “Astro-turf” comes in, referring to fake grass roots efforts.

Shadow groups formed. The Chamber of Commerce funneled dark money into these groups, which, in turn, funded legislative and supreme court candidates sympathetic to their cause.

Sad to say, Wisconsin is a hideous example of this practice. Wisconsin Manufacturers and Commerce, which is a mammoth pro-business lobbying organization, began an effort to turn what had been a fairly even-handed Wisconsin Supreme Court into its puppet.

In 2007, WMC spent millions to elect right winger Annette Ziegler. The next year, WMC again spent millions to unseat incumbent Justice Louis Butler. Butler had been in their sights since he wrote the decision in the 2005 “lead paint” case (Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d, 701 N.W. 2d 523.) where the Wisconsin Supreme Court, under the “risk contribution theory,” ruled that all lead paint manufacturers could be held liable in situations where it was impossible to determine whose paint caused what harm.

Butler was defeated in what proved to be a very ugly campaign with strong, racist overtones such that William Gableman, who defeated Butler, faced ethics charges based on some of his campaign’s advertising.

WMC had thus bought itself a state supreme court, which I would argue is about as corrupt as any state supreme court in the nation. If there is a case involving a business or corporate interest, well, forget about it. If there is a case involving Scott Walker, well, forget about it.

The Wisconsin Supreme Court went so far as to rule contrary to Citizens United to protect WMC, Walker and the Wisconsin Club for Growth in a case that stopped a legitimate criminal investigation. Justices Gableman, Ziegler and David Prosser refused to recuse themselves despite the fact that all three benefitted from millions in “issue advocacy” campaigning by WMC who was a party in the case.

If that is not bad enough, Prosser may have been a subject of the investigation that he helped shut down. This corruption and abuse of power is so extreme that the U.S. Supreme Court has been asked to intervene.


WMC was again up to its old tricks this spring when Rebecca Bradley was elected to the Wisconsin Supreme Court. Walker appointed Bradley to fill the seat of Justice Patrick Crooks who died suddenly last year. Her thin qualifications were due entirely to Walker largesse. He appointed her to the circuit court, then the appeals court where she served so briefly that there were hardly any decisions that bore her name.

During the campaign, it was revealed that Bradly, as a college student at Marquette, had penned several ugly, hateful, bigoted screeds that were published in the college newspaper. Walker claimed that he did not have knowledge of these writings. Nor did he seem to care. It did not matter. None of that mattered. Her lack of experience did not matter. Her extreme political views did not matter. And it certainly did not matter that Bradley consistently and frequently called herself an independent when nothing could be further from the truth.

The fact of the matter is that Walker would not have appointed her to the court if she did not bear the WMC seal of approval. Despite the way the media portrayed the election, it was not about liberal vs. conservative. It was not about opposing Constitutional interpretation philosophies. It was about who will do WMC’s bidding and who will not.

For one to truly understand this recent Wisconsin Supreme Court election, one must view it through the prism of tort reform. This is true in Wisconsin, as it is, sadly, in most states across the country.

The upshot is that our democracy is under attack. It has been seriously undermined to such an extent I fear that it may not be able to recover.

Our political system, in theory, can work. It should work. In theory.

We need checks and balance. Therefore, we need bono fide separation of powers. We need a fair judiciary to engage in reasonable judicial review. If legislatures are only passing bills written by lobbyists representing the rich and powerful, if we have governors who will sign anything that benefits wealthy campaign donors, we need a court system that will say no.

We need a court system where ordinary people can get a fair shake. We need a court system where the outcome is not a foregone conclusion from the very beginning. We need a court system that is rooted in fairness and justice.

This is what democracy looks like.