Wal-Mart Sues, SCOTUS Screws Brain Damaged Woman
By Logan Murphy Monday Mar 24, 2008 7:01pm
The family of Deborah Shank has lost its last chance to stop Wal-Mart Stores from recouping hundreds of thousands of dollars in medical expenses from an accident settlement the Shanks hoped to use for her future care in a nursing home.
Last November, the WSJ reported in a front-page story how the retail giant had sued Deborah Shank—a 52-year-old former Wal-Mart employee left permanently brain damaged from a car accident nearly eight years ago—for the money and won. Like most employee health plans, Wal-Mart’s gives it the right to recover medical expenses for accident-related care if a worker also collects damages in an injury suit.
After losing in federal court and again on appeal, the Shanks’ last legal hope was a bid to the U.S. Supreme Court. Yesterday, though, the court announced it wouldn’t take up the case, bringing the matter to a close. Read on...
Welcome to the Bush-Wal-Mart America. Corporations trump the common folk every time. Elections matter, vote Democratic in November.
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[deleted - see the commenting policy. sitemonitor]
I may be wrong, but I thought all companies and/or individuals who pay for medical expenses are indemnified if the injured party receives monetary compensation for those injuries and it includes the medical expenses within the award.
The problem is caps on jury awards, and the GOP has done a slam-bang job of convincing people that injured parties are walking out of courtrooms with excessive awards for damages. The case of the elderly woman who sued McDonald's for the hot coffee spill is a classic instance of how the GOP bamboozled people into thinking she didn't deserve the award, when in fact she most certainly did, as anyone who is aware of all the facts of that case will agree.
[refers to deleted post. sitemonitor]
"Elections matter, vote Democratic in November."
Really? Because last time we voted Democratic to end the war, and, if I am not mistaken, the war is still going on. As well as torture, the suspension of Habeas Corpus, extraordinary rendition, the Patriot Act II...
But this time it will be different, right?
Walmart represents the very essence of US corporate culture. It derives its success from a profound understanding of the consumer based society that the US has proudly embraced for decades.
If Crooks and Liars really wants to reject Walmart and the system that allowed it to evolve, eliminate your advertising.
Yet one more excellent argument in favor of a cradle to grave national comprehensive health care system....Medicare for all.
If we had a system in place right now, Deborah Shank would get the care she needs for the rest of her life.
Of course we might have to cut the military industrial complex's nose off in order to get there....
Oh, never mind....
YA @ 4:
WELL JESUS CHRIST:
Vote republican then, instead of having a hissy fit here.
What is it with you people? Nadar's a dick by the way: an opportunistic, pompous, arrogant DICK.
Straight Shooter @ 2:
Yeah, someone definitely deserves a muti-million dollar award for spilling coffee on their self because the person in the drive-thru didn't tell them that their coffee was hot.
Or... the lesson here could be Don't work at Wal-Mart.
YA @ 4:
You gave them the 2/3 majority needed to end the war I see... along with the other bits of your shopping list.
I'm searching for a new home, anybody know a city with reasonable under-bridge property, and lovely views of gated communities?
Get your dander down folks. I am a liberal and handled insurance claims for over 40 years; this is no evil corporate plot to rob the poor. Such clauses as being enforced by Wal-Mart are standard and have been stardard for a long, long time. Consider, if the claimant gets paid the medical bills by both the carrier for the tort-feasor and by the medical health carrier, the claimant has been paid twice.... or, to put it simply, it would be double-dipping. Generally speaking, the injured claimant gets "general" damages (pain and suffering) and non-medical "special" damages (for instance, loss of earnings) from the insurance carrier for the tort-feasor (the 'at-fault' party), and that same insurance company usually will make a deal with the health care carrier to settle their lien for their medical expenses, with all parties agreeing to the settlement.
YA @ 4:
YES!! Curses on those democrats for vetoing and filibustering all the funding restrictions, withdrawal, making torture illegal, etc legislation that the democratic senate and house have passed.......wait, that doesn't make sense but then, neither does your post.
beltman713 @ 8:
I seem to remember that there is a limit to how hot the coffee can be and not burn someones mouth. This coffee exceded that amount so much that if she hadn't spilt it on her lap it would have scalded the inside of her mouth.IF SHE HAD BEEN GOING SAY 65 MPH ON THE INTERSTATE SHE WOULD MOST LIKELY HAVE KILLED HERSELF AND SEVERAL OTHER PEOPLE!
What does Bush have to do with it?
"Welcome to the Bush-Wal-Mart America. Corporations trump the common folk every time. Elections matter, vote Democratic in November."
Hahaha, yes, vote for Hillary Clinton, who sat on WalMart's board for seven years, or for Barack Obama, who's top contributors are corporate law and lobbying firms Kirkland & Ellis and Skadden. Things will REALLY change then.
EliteLemming @ 11:
What I'm suppose to tell you? Where will I live?
chris @ 15:
At least four members of the SCOTUS are also members of the club, Bush is the face of the club (ooh nice duality)... hence...
Plus two of em are his appointments.
beltman713 @ 8:
I said to read the facts of the case. This woman was hospitalized for an extended time, had several skin grafts, almost died. It was also revealed that other people had been seriously burned but McDonald's settled with them, under confidential agreements. The coffee was exceedingly hot, far beyond reasonable expectations.
Please do your homework before making snarky remarks about people who have been grievously injured. Thank you.
Do Something about it...
http://action.walmartwatch.com/page/content/debbieshank/
Mike Mid City @ 17:
Well, I priced some caves, but they were off the beaten path, and there wasn't much in the way of convenience nearby.
beltman713 @ 8:
What's funnier than a 79 yr. old woman with 2nd and 3rd degree burns over 20+% of her body, including her genitals, necessitating skin grafts and 2 years of medical treatment? Answer: everything. Read the facts of the case, like StraightShooter said.
CLAIMSMAN @ 12:
You should read the WSJ article (note: WSJ not WaPo). The healthplan didn't even cover all of her expenses. They stopped coverage after a year or something and the lady still needed rehab and other care. The award was for medical costs from that date on. It was specifically designated for medical expenses related to care forward - and it was put in a trust for that purpose. The husband was also compensated around 200,000 - from which he paid some of her remaining medical bills. The health insurance company recouped all of their expenses - the guy's lawyer even argued that the "insurer" should only be compensated proportional to how much they covered, but the judge said, "no, we'll pay the health insurance company first."
That decision came less than a week after the husband found out his son had been killed in Iraq.
EliteLemming @ 21:
Evolution in reverse? Could you use a room mate?
Sickening, but not surprising. I'd rather pay double than give Walmart one cent.
On Wikipedia's 2007 list of billionares, five Waltons make the top 50 with just under $17 billion apiece. Just thought I'd throw that out there.
CLAIMSMAN @ 12:
Exactly. The health plan offered by Walmart is a self-insured plan under the ERISA
(Employees Retirement Income Security Act) of 1974; a federally enacted piece of
legislation and is NOT subject to the regulation of the various State Insurance Commissions nationwide. Many employers offer ERISA health plans because the cost
(premiums) are generally lesser than under a normal group health insurance plan underwritted by an insurance company...and some of the limitations/restrictions/exceptions contained in such plans are different than those
under a customary group health insurance plan.
Loved the WSJ ad posted with this -- made a peculiar intertextuality...
To be fair to Wal-Mart she did decline their offer to lock her into a store every night with the other cleaners until she'd repaid her debt. Indentured servitude, the Wal-Mart way of life.
Ron @ 24:
LOL
Sure, but if things really go bad we're eating your legs first.
chris @ 15:
Two SCOTUS nominees, corrupt justice department that won't investigate corporations, underfunding/understaffing/neutering regulatory agencies.
Mind you, I think he's just a figurehead and Cheney is pulling the strings - but Bush is still responsible for his part in it.
joeedugan @ 22:
Thanks, Joe. I'm doing beltman's homework for him/her, in case anyone else is interested:
79-year old Stella Liebeck and her grandson stopped by a McDonald's drive-through. Liebeck bought a cup of coffee, served in a styrofoam cup. She was sitting in the back seat of the car. When they had pulled out of the driveway, the grandson stopped for a moment so Liebeck could open the lid and put sugar and cream in her coffee (note: I've read several newspaper articles claiming that she was trying to open the cup while driving). The lid was stuck, so she tried to hold the cup with her knees while pulling the lid open with both her hands (which is very understandable, seeing as she's a weak elderly woman). As she removed the lid, the contents of the cup were spilled in her lap. She was wearing a pair of sweatpants, which absorbed the coffee, and held it next to her skin.
Now, here's the kicker: THE COFFEE WAS NOT HOT. It was SCALDING. The coffee was around 85° C (185° F). Normal household coffee is about 60° C (140° F). The coffee gave her third-degree burns over 6% of her body - her inner thighs, groin and buttocks. She had to be hospitalized for over a week, and had to undergo skin grafting. She had to pay 11 000 dollars for the treatment. And she's still crippled.
Liebeck sought to settle her claim for $20,000. McDonald's refused. They actually countered with an offer of 800 bucks.
During discovery, more than 700 claims from other people burned by McDonald's scalding coffee were produced. Many of them had stories similar to that of Stella Liebeck's. Before this was made known, McDonald's representatives lied to the court and jury about the existence of other claims. The claims documented that McDonald's were fully aware of the problem and its extent. McDonald's Quality Assurancy Manager also admitted during discovery that their POLICY was to hold their coffee at about 85° C in the pot (give or take a few degrees). This was based on a consultant's advice - he said that it'd maintain optimum taste longer after being taken out of the pot. Any coffee served directly from the pot WOULD in most cases cause burns to mouth and throat, and they knew it. The manager also testified that there is a burn hazard with any food/drink served at above 60° C (140° F), and that McDonald's coffee WAS NOT at all FIT FOR CONSUMPTION. He also testified that McDonald's had no intention to lower their holding temperature.
Other testimony showed that liquids at 85° would cause a full thickness burn to human skin in 2-7 seconds.
http://everything2.com/index.pl?node_id=1107089
Terry740 @ 14:
She spilled the coffee on her self. Hey, I spilled an entire medium coke in my lap one time in the drive-thru at Buger King one time. Should I sue them because my nuts got glued to my underwear?
EliteLemming @ 21:
There are always plenty of great fixer-upper possibilities at your local landfill. Plus, under the Bush Economy, opportunities for entrepreneurial garbage-pickers are booming! Add in the cries of the gulls and it's just like you're living in a shanty by the sea! Just remember to thank George W., after all hes done more for us even than Pat Buchanan has done for the negroes.
JW @ 16:
Old man Walton did buy American ,his low prices was for the most part correct but since his death his children haven't cared about anything but profit. Wal Mart was behind the Repugnics attempt at tort reform to stop all those" frivolous"
wage law suits. It may have been because quite a few was against them and they were losing almost every one. When Wal Mart first started (in Arkansas) it was a good thing but now I can't allow myself to shop there and haven't done so in nearly four years.
Check out Wakeupwalmart.com
Shamefully, I only JUST watched Sicko a few weeks ago. It has left me utterly depressed and discouraged and praying desperately for universal health care. As the wife of a type 1 diabetic and the mother of an 8 yr old epileptic, health care costs are always a worry for our family.
beltman713 @ 33:
I think in South Dakota you'd have to list each sperm by name as a co-claimant.
Welcome to America, if you work for a living your f**ked from the moment your born till the moment you die.
beltman713 @ 33:
You have to first have nuts, tough guy.
Old Billy Hussein @ 37:
Lol!
The ads are gone!!! Hahahahaha. Thanks John.........oh and on topic
Is it not a little odd to be thrashing Walmart, and then saying "vote Democratic", when the remaining candidates for the Dems have connections to Walmart? I mean, that seems a bit weird.
EliteLemming @ 30:
You might change your mind after you see how skinny my legs are.
Bud Osama Bin Laden Hussein @ 39:
Never fails. You try and have a discussion and then some jackass has to start getting personal.
beltman713 @ 33:
Boil a pot of water, dunk your junk in it until you've got 3rd degree burns all over. Then you'll be an expert on this woman's experience. We eagerly await your next post.
beltman713 @ 43:
You compared spilling pop on your balls with some woman getting scalded so bad as to need major surgery, and you call other people jackass? Yikes. Dude, get a mirror.
I found this link on Boing Boing:
Walmart growth graphic.
http://blog.kiwitobes.com/?p=51
beltman713 @ 43:
If your nuts came off with your underwear you might have a case.
ConcernedCanuck @ 45:
[deleted.......abusive......Please bring it down a notch.Site Monitor]
Looks like her lawyer didn't do her any favors. Should have worked out an agreement with Walmart before settling.
Isn't Hillary Clinton still on the board of directors for Walmart? How's that for health care for everyone?
Abbybwood @ 6:
This is why our taxes wouldn't go up if there was a national health care in place. If the US paid money to help people and not pay money to kill people, you would see a huge change for the better. The US is also creating a socialized system by bailing out the ShearBears' with 200 billion. Why do people in the states never see this? Privitize profits, socialize losses.... sad
Are we going to end up as a country where there are no personal rights or personal property? Just corporations which have written the laws to collectivize all rights and property for themselves, and stacked the courts to enforce them?
EliteLemming @ 11:
come up to the great white(refers to snow, I know you're a little sensitive on race down there)north, we regulate mortgages, banks, hospitals,insurance, well pretty much everything and our bridges are built to drive on not sleep under.
The Republic party is all about survival of the fittest. . . Who is easier to take advantage of than a woman who has suffered brain damage ! Let's just see her try to fight back ! Ha ! It's like a rabid pit bull on an infant . . .
Goddamn I hate WalMart. I stopped going there years ago...
CLAIMSMAN @ 12:
But that's NOT what happened in this case. Any fair and equitable outcome of this case should have resulted in the preservation of some of her damages award, either through settlement or in a legal judgement, in order to fund the ongoing care she needs as a direct result of the accident.
For Crissake, Walmart sued her for money she didn't have and NEVER had to begin with - because her original $700,000 insurance payout for the accident was reduced by legal costs and lawyers fees to $417,000 - less than the cost of her medical care, now repayable to Walmart.
Yes, Walmart had a contractual right to recover its medical payout, but because the medical system and legal system in the US is set up the way it is, huge overhead costs are built into the "medical costs" Walmart is allowed to recover.
Think about it. This poor woman had her accident insurance payout reduced by 40% ($283,000) just to pay the lawyers and courts. Call this the "legal discount" she had to pay, just to get get the money she was owed by the owner of the truck that scrambled her brain.
And yet Walmart's claim against her wasn't discounted. They sued for and won every bit of the medical insurance money she was paid as a Walmart employee. Why wasn't their claim discounted, as her accident damages were? Why did the cost of recovery, for her and Walmart, fall only on her? Yes, I know Walmart insurance agreement stated this, but it's NOT RIGHT.
And what about the huge overhead cost of medical care, built into the bills of Mrs. Shank and every American? Nobody else in the world pays so much for the cost of insurance industry bureaucracy.
What incentive is there for corporate insurance purchasers like Walmart to reduce the cost of insurance, when they get to recover the full cost of medical care, including overhead of 25% and more?
It's like a cost-plus arrangement. The bloated overhead that reduces affordability for so many Americans should not be recoverable when corporations ask injured employees to pay back medical costs from third-party insurance payouts. Let Walmart and its insurance subcontractor eat the overhead. Then the medical insurance companies would come under real pressure to make themselves more efficient. Citizens have no power to reduce overhead. Walmart does.
Funny thing is, Walmart employees in Canada have public single-payer insurance, just like all Canadians. If the company is like most employers in Canada, it pays all or part of employee health premiums.
I bet Walmart pays way less for medical insurance in Canada (and the UK, and the other countries it operates in) than it does in the US.
Ironic, no?
EliteLemming @ 26:
Yeah, they really need all that money.
Sick, predatory parasites.
CLAIMSMAN @ 12:
Not in Canada
Annoyed Canuck @ 56:
No, it's not ironic.
It demonstrates that even huge companies like Walmart will comply with the law - eventually.
All that is needed is the backbone to have the right laws.
Four more years of conservative governance and this site will be getting posts: "Not in Mexico."
steve @ 52:
Thanks for the invite. Need to brush up on Hockey rules and I'm on my way. You guys alright with immigrants?
D.G. Bowman @ 57:
It's its own form of drain bamage.
If elections matter.
Then vote NON-CFR.
Hillary, Obama and McCain are CFR/ NWO members.
They will all screw us blind.
They WANT a North American Union and a New World Order.
Guess who's not in the CFR, who loves the Constitution and is STILL in the race.
Do you really believe that the results of this election is going to change any of this?
It's tough to complain about anything when there are people like Deborah Shank. How can so many horrible things happen to some people and not others.
How did we let American workers get screwed so bad by corporate America? Please vote Democratic. There's no guarentees but we've seen what Republicans have done. They took her son, and then they took her money.
beltman713 @ 8:
More important than the facts of the specific case (which you don't know), is that we can't use isolated cases of percieved abuse to cripple a whole system like that. You don't think one person deserves the award she got so you want to make it illegal for anyone to get a big award regardless of their circumstances? That makes about as much sense as legalizing torture just because of one fictional scenario on a tv show.
What's your position, that corportations like McDonald's have been getting kicked around by the little guy for too long?
Seriously?
I would side with Walmart at this case as they have do no wrong. You wouldn't want to get tax twice would you? Why then must Walmart pay the victim twice in this case? It would have been different if Walmart tried not to compensate the victim, however they did and the victim wants twice the money. This to me is greed and personal greed like this are the cause of progressive movements not being able to advance our honest agenda.
Chris @ 64:
If america actually had an election campain on the issues instead of all the crap that goes on, yah it probably would.
But as I watch your election campain disintegrate into the usual discussions (race,religion,tax returns?...etc) probably not.
Estan @ 63:
==================================================
To narrow things down a little further Hilliary, Obama and McBush, which one was on the board for Wall Mart, hmm, who was that?
See this is how uneducated our public is. Look at the facts of the Mc Donald coffee case. It is not about the warning of how 'hot' the coffee is. If you look at the victim, it actually left a heavy burnt scar. This case is about Mc Donald's serving their coffee above the limit of how hot hot drinks can be served (above boiling point) and this was done so that they could mass produce coffees rather than serve as your order.
gwen @ 66:
something was really wrong with this settlement
she only got 700k for what should have been a lifetime of care?
this is what happens when you have tort reform...the victim gets screwed
the settlement shouldve covered all medical bills...including what wallmart covered
doesnt change the fact that the multibillion dollar wallmart are evil aholes
burn all wallmarts to the ground
Lollimom @ 7:
I'm not going to be voting for the Democratic candidate. I'm sure you aren't in favor of the current two-party system, so really, voting Nader is the strongest left challenge to corporate interests which dominate both parties. Clinton served on the board of Wal-mart, so how could her or her party be supportive of working-class interests? Trading votes for perennial promises has never brought progress, if we break from the people causing the problems and build our own party, seriously independent, unafraid of using power then we can change politics.
I fail to see what is wrong with Wal-Mart's course of action. Why should Wal-Mart have to pay damages if the Shanks collected damages from those directly at fault? Why does this story fail to mention how much the Shanks collected in the injury suit? It obviously well exceeded the amount of the medical care required.
It's a sad story, but just because Wal-Mart is the big corporation and the Shanks are the "little guy" doesn't mean Wal-Mart is in the wrong here.
Instead of the usual hand-wringing and victim mentality, how about fighting back with a boycott of Wal-Mart? That could result in the entire amount of its lawsuit recovery being lost in sales every hour or so. Oh, and tell them about the boycott so they know.