ATRA lawyer says movie slashed key part of argument

John O'Brien Jun. 27, 2011, 2:59pm



WASHINGTON (Legal Newsline) - A tort reform advocate who was interviewed for a documentary that debuts Monday on HBO says his comments were taken out of context, though the filmmaker is defending her editing.

Victor Schwartz, general counsel of the American Tort Reform Association, says director Susan Saladoff and her movie -- titled "Hot Coffee" -- edited his opinion on public financing for judicial elections to benefit the film's goal. Saladoff is a first-time filmmaker who is also a medical malpractice lawyer.

In the film, Schwartz says his opinion on the public financing of elections differs from much of the rest of the tort reform crowd in that he favors it. But he also said that plaintiffs attorneys spend plenty on those elections and also would not want to see a shift toward public financing.

"My learned speculation is plaintiffs lawyers would never want to get rid of money in elections," Schwartz said Monday.

"I was surprised she didn't put things in context. It troubled me. I've been doing this 30 years and I've been on 60 minutes twice... She used my quotes to prop up some of her propositions -- that business money soils elections."

Part of the film chronicles former Mississippi Supreme Court Justice Oliver Diaz, who lost his 2008 reelection campaign. Diaz blamed the loss on spending by business interests like the U.S. Chamber of Commerce. Legal Newsline is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber.

Saladoff says Schwartz is off-base.

"Victor's words were complete and in context, you can tell by the end of his sentence: 'and there are many people in the business community who wouldn't agree with me on that,'" Saladoff said.

"That says it all."

Schwartz was the only tort reform advocate who agreed to be interviewed for the film.

"It was very avid, in writing, that the parts with me would be presented in a fair and objective way," Schwartz said. "Stuff like that happens. I'm a big boy. I've been around a long time. I knew they would not give me a lot of space.

"I thought, at least, what I believed would be presented and would help the film become balanced because they couldn't find people to present that side. Maybe those who refused were a lot smarter than me."

Schwartz says he has contacted counsel for Saladoff and HBO but doesn't believe litigation is an option.

The section on campaign spending is one of four in the movie. The first makes the argument that corporate America misrepresented the merits of the famous lawsuit against McDonald's over the temperature of its coffee to help pass tort reform measures.

The movie shows the third-degree burns caused by the coffee to Stella Liebeck's lap. Other parts of the movie include a Nebraska couple who had their award in a medical malpractice case slashed by a cap on damages and a woman who was raped while working for Halliburton in Iraq unable to sue the company in open court because of a mandatory arbitration clause in her employment contract.

Schwartz said only one side of each story is presented, calling them half-cups of coffee. He argues:

* The hot coffee lawsuit was considered frivolous because Liebeck spilled the coffee on herself, not because it was served too hot;

* Evidence that McDonald's never acted on 700 complaints concerning its coffee's temperature is never balanced with the fact that the company has served billions of cups of coffee;

* ATRA never has campaigned for caps on actual damages, only on non-economic damages like pain and suffering; and

* Mandatory arbitration clauses are void when they aren't expressed adequately in a contract.

Saladoff's film concludes with a call to action on the arguments against tort reform and mandatory arbitration. She says her goal was to "change the conversation" regarding tort reform.

"I had something to say that's been gnawing at me," Saladoff said. "I kept waiting for someone else to make this film, but they never did."

Saladoff financed the film by having parties to show a trailer and says no outside groups -- such as the American Association for Justice -- were involved. Saladoff is a former member of the AAJ.

She is a former president of Trial Lawyers for Public Justice, now known as Public Justice. She says the group has met at AAJ conventions.

From Legal Newsline: Reach John O'Brien by e-mail at

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