The critically acclaimed documentary “Hot Coffee” is now available on DVD. The film examines “tort reform” in the United States from several plaintiffs’ perspectives and discusses caps on damages, judicial elections, and mandatory arbitration clauses. Although the film approaches these subjects with a jaundiced eye, it is nevertheless engaging and worthwhile for those interested in tort or product liability law.
Of course, that should not be interpreted as an endorsement of the film’s underlying political message–namely that the various changes to the civil justice system broadly captured by the “tort reform” moniker are bad policy. Indeed, for every sympathetic plaintiff that Ms. Saladoff (the film’s producer/director) presents, there are no doubt an equal (if not greater) number of truly frivolous claims that could be chronicled, especially in the mass tort context. For example, most people will remember U.S. District Judge Janis Jack’s scathing 250-page opinion detailing how thousands of silicosis claims had been fraudulently diagnosed in mass screenings in Mississippi. And more recently, U.S. District Judge Alvin Hellerstein has accused plaintiffs’ counsel in a recent opinion in the World Trade Center Disaster Site litigation of filing claims on behalf of “sham plaintiffs.”
But perhaps the biggest story not told in the film is how the multidistrict litigation process has evolved in recent years to fairly and efficiently handle the hundreds or thousands of related claims that flood the courts each time a product or event is alleged to cause similar injuries to multiple plaintiffs around the country. The centralization of such claims before one judge allows discovery to proceed in a manageable, yet expeditious, fashion so that representative “bellwether” trials can then be held to allow jurors to evaluate the merits of the claims. And after several years of such public airing, mass tort litigation is increasingly being settled by non-class opt-in settlement agreements that allow individual plaintiffs to decide for themselves whether to accept the settlement offer or instead continue litigating. Although it might be hard to present the story of the evolving multidistrict litigation process in a provocative documentary film, it is an important piece to the “tort reform” narrative–even though it has largely been driven by the judiciary and is not traditionally associated with the “tort reform” agenda.