FORT MYERS — A Lee County woman told jurors this month that scalding hot water spewed from a defective McDonald's cup lid and burned her breasts, permanently scarring her.
But medical records say when she went to an emergency room days later, she said the hot water splashed as she dropped a tea bag into the water.
It took jurors less than an hour to find McDonald's wasn't negligent and decide Dawn Miller, 44, a Cape Coral mother of three, should get nothing for her 2011 lawsuit.
"She assumed the lid was off, but I was getting a tea bag," Miller said, contending an intake nurse's notes misled two doctors and that she had some second-degree burns. "I went through a lot of misery for three months."
While Miller denies her lawsuit was frivolous, in the business world the bane of any merchant is a frivolous lawsuit or complaint. Many complaints are settled by insurers — or out of a business owner's pocket — before they're even filed in court. According to the National Federation of Independent Businesses, these most often settle for less than $5,000, but even $1,000 is significant for a smaller business.
Retailers are especially hard-hit and often end up passing on legal costs through price increases or cutbacks to other areas. A 2007 Harris Poll of small business owners and managers found more than a third had been sued, 73 percent said business suffered due to time-consuming litigation, and 62 percent made business decisions to avoid lawsuits, making products and services more expensive.
By the numbers
A 2007 Harris Poll of small business owners and managers found more than a third had been sued, 73 percent said business suffered due to time-consuming litigation, and 62 percent made business decisions to avoid lawsuits, making products and services more expensive.
"It absolutely does affect costs," said Samantha Hunter Padget, general counsel for the Florida Retail Federation. "Any business that has to protect itself from frivolous lawsuits is spending tons of money in preventing that and instead could be spending it on customer service or its core mission."
According to the U.S. Chamber Institute for Legal Reform, small businesses spent $105.4 billion on litigation in 2008, paying $35.6 billion out-of-pocket, not covered by insurance.
For retailers, the slip-and-fall lawsuit was the most common, but two years ago, the Florida statute involving slips and falls on wet substances changed. That, added to a decrease prompted by surveillance cameras, makes it harder to sue or settle.
"There was a feeling of general relief among all our members," Padget said, adding that lawsuits are now being dropped more quickly now. "It allows retailers to win a summary judgment."
Among the notable lawsuits in Florida tossed out quickly was one involving a Martin County man who demanded $2 million from First National Bank and Trust for his loss of sleep and stress after he was charged $32 for overdrawing his checking account by $5.
* * * * *
In another, a Pinellas County physical therapist sued a local strip club, claiming he suffered mental anguish and whiplash from a lap dancer's 69-HH breasts, which he called "concrete blocks." Both suits were tossed out.
Among the notable lawsuits in Florida tossed out quickly was one involving a Martin County man who demanded $2 million from First National Bank and Trust for his loss of sleep and stress after he was charged $32 for overdrawing his checking account by $5. In another, a Pinellas County physical therapist sued a local strip club, claiming he suffered mental anguish and whiplash from a lap dancer's 69-HH breasts, which he called "concrete blocks." Both suits were tossed out.
This year in Collier Circuit Court, where claims involve $15,000 or more, lawsuits alleged a kettlebell fell on a Walmart shopper's foot; a bottle toppled off a shelf, hitting a Sweetbay customer's head; and many other shoppers slipped on water, grease or price tags or tripped on cement parking blocks and pavement cracks.
Most won't make it to a jury.
"Laws passed in the last two decades have made it more difficult to sue businesses," said Naples attorney Ted Zelman, who has defended businesses and sued them. "Cases are more difficult to file, there are more defenses that can be raised and there are more limits on awards."
While the recent Southwest Florida McDonald's case was rejected by a jury, the notable case that garnered national headlines ended in a push for tort reform after a McDonald's public relations spin and mocking by talk show hosts, columnists and others.
The lawsuit by 79-year-old Stella Lieback, ending in a $2.9 million verdict in 1994, involved scalding hot McDonald's coffee that was 180-190 degrees — hot enough to cause third-degree burns within seconds and hot enough to prompt hundreds of prior complaints over 10 years about scalding injuries.
McDonald's hadn't lowered temperatures and wouldn't pay her medical costs, which included eight days of hospitalization and skin grafts totaling more than $20,000. McDonald's offered $800. Jurors found she was 20 percent at fault and the case eventually settled after a judge lowered the award to $480,000.
"The bottom line is the facts of the cases can always be blown out of proportion," said Paul D. Jess, general counsel for the trial lawyers' group, Florida Justice Association, noting that the documentary, "Hot Coffee," set the facts straight in that notable case.
However, he said, few frivolous lawsuits are filed in Florida.
"It's easy to file a frivolous lawsuit, but they're difficult to prosecute," Jess said. "If you bring a suit and the other side thinks it's a frivolous lawsuit, they file a 57.105 motion."
Known as the frivolous lawsuit statute, the motion allows a judge to impose sanctions on a plaintiff and lawyer if a lawsuit isn't supported by facts or law. Two other tools defense lawyers wield under Florida's Rules of Procedure can lead to plaintiffs paying a defense lawyer's fees if they get nothing or a verdict isn't 75 percent of the settlement offer.
"I understand companies sometimes make a business decision that it's not worth the cost of litigation, so they pay it," Jess said of settlements, adding, "A lot of times you see settlements after mediation because an insurer sees facts they didn't know about, or the plaintiff's lawyer realizes it's not as good a case as they thought."
Gov. Rick Scott, who wants to attract more businesses to Florida, addressed frivolous lawsuits in his 2012 State of the State speech while agreeing Floridians should have access to courts if they're harmed.
"At the same time, we can't allow frivolous suits and unreasonable awards to give our state a reputation that frightens away new jobs," Scott added.
In the local McDonald’s case, defense attorney Kevin Crews of Naples filed a “proposal for settlement” this spring, but was turned down. By law, Miller is liable for his defense fees and costs; he declined to specify the offer, his fees or costs, which local lawyers said could easily amount to at least $25,000.
A juror told the Daily News he considered Miller's lawsuit "frivolous, very much so," noting Miller didn't seek treatment for three days. However, Miller said it was three days later when her skin started to blister and medical staff misunderstood what she said happened, so she's looking for a new lawyer.