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March 11, 2004

THE CHEESEBURGER BILL....I'm not sure what to think of this bill that bans suits against the food industry on the grounds that it encourages obesity. There seem to be two important — and competing — principles at work here.

On the one hand, I don't think much of using civil damage suits aimed at a specific industry as a way of changing social policy. Down that road lies madness.

But at the same time, I also don't think much of Congress exempting specific industries from the civil justice system. That can lead to some madness of its own.

Unfortunately, these two principles seem pretty well balanced, so I can't figure out which one is more important. Tentatively, I think I'm opposed to Congress fiddling in such a specific manner with the civil justice system. I'd rather have them propose general reforms that would broadly affect the ability to bring lawsuits like this. Once that's done, let the system work equally for every industry.

But I'm open to argument on this.

Posted by Kevin Drum at March 11, 2004 09:55 AM | TrackBack


Comments

Obesity lawsuits are getting laughed out of court, this sort of bill is nothing more than unnecessary pandering.

Posted by: Irrational Bush Hatred at March 11, 2004 09:57 AM | PERMALINK

It seems to me that if the government is unwilling to regulate industries it has to let private citizens protect themselves through citizens attorney-general suits. Thus far, the courts have thrown out all the burger suits. So the citizens attorney general theory is working (stupid suits are failing). The problem with Prince Awol and his merry men is that they want neither to regulate nor to let citizens protect themselves.

Pudentilla (whose love for Road Burgers is profound)

Posted by: Margaret Imber at March 11, 2004 10:02 AM | PERMALINK

Hmmm, ideally I would prefer to change civil lawsuit rules to strengthen the concept of personal responsibility for doing things like eating food that you buy such that you couldn't win such a lawsuit. I'm not a big fan of specifically exempting individual businesses from the law. But these suits are particularly awful and annoyingly reccurent so I'm open to the idea that they should be particularly banned.

Honestly I think the whole tort concept has grown too far. Not all accidents should require compensation, especially when the accident was largely the fault of the plaintiff. I would tend to support a comparative fault system where a defendant is only liable for the percentage which is there fault, and would be totally off the hook if the plaintiff had a high degree of fault (say 70%.)

Posted by: Sebastian Holsclaw at March 11, 2004 10:09 AM | PERMALINK

Ultimately, if you can get the judge to agree that there is a case in the first place, and then get the jury to agree that that the damages have been willfully done, and then get the second judge (on the inevitable appeal) to concur that actual damage has been done, then I would very likely say that justice has probably occurred...

What I am getting at is that there are more than enough checks in the system to protect industries from angry citizens. Having congress intervene for one industry for one specific offense seems rather superfluous, not to mention that it stifles one avenue for citizens to seek recompensation for actual damages (assuming such damages have actually happened)

Besides, it seems to violate the spirit, if not the letter of the constitution (article 1 section 9 paragraph 3)
“No bill of attainder or ex post facto Law shall be passed. No bill of attainder or ex post facto Law shall be passed.”
This seems like a Bill of Attainder...

Posted by: Andrew Cory at March 11, 2004 10:10 AM | PERMALINK

"Obesity lawsuits are getting laughed out of court, this sort of bill is nothing more than unnecessary pandering."

Still will cost more lawyer money than if they don't get filed at all.

Nice post, Kevin. With you on every point, actually.

Posted by: bob mcmanus at March 11, 2004 10:11 AM | PERMALINK

I think this is unnecessary legislation. Not a single lawsuit against the fast food industry has managed to progress to an actual trial. So it's pointless to think we need this kind of legislation. I actually think it's good that people can at least file lawsuits because it brings attention to the unhealthy fare served by fast food places and has forced many of them to make some much needed changes. Without this kind of attention, I think they'll go back to their wicked ways of encouraging people to stuff their faces. Most people when asked whether they want to "Supersize" for only 30 more cents! don't run over to the calorie wall chart first to see how many more calories that will be.

Yes, people are responsible for their own consumption but I also think it's true that many people simply aren't aware of the EXTREME amount of fat and calories these things have. For example, who would imagine that you're better off getting a McDonald's cheeseburger than one of their new lowfat alternatives--the chicken salad?

And how many parents even know how many calories their kids are SUPPOSED to eat in a day let alone how many calories are in a Happy Meal and whether that is okay?

I think restaurants just need to reduce the sizes of their items. They can sell them for the same price if they want, I don't care. People have lost all sense of what a "regular size" meal is. Fast food places have contributed to that greatly and while I don't think they should be held financially accountable, I think taking the pressure off them as congress is doing will reverse the progress they have made.

Posted by: CatM at March 11, 2004 10:12 AM | PERMALINK

As an attorney, I say let the courts deal with these lawsuits. Restricting the jurisdiction of the courts is short-sighted and self-defeating.

Posted by: Pocket Rocket at March 11, 2004 10:13 AM | PERMALINK

Have any plaintiffs won such a suit? If not, I say let the courts do their job.

Posted by: rachelrachel at March 11, 2004 10:14 AM | PERMALINK

Big Food is trying to run the same bills in various state legislatures. My state just passed a bill immunizing everyone in the food chain from obesity liability. I was part of the trial lawyers association lobbying on the issue. These immunity bills are solutions in search of a problem.

Immunity is almost always a bad idea. It undercuts a core belief we all (especially conservatives) have (or are supposed to have): personal responsibility and accountability. You can never increase one person's accountability by immunizing someone else. You just decrease the immunized person's accountability. Immunity sends the wrong message to everyone involved. Much better to let the courts sort out any suits that are brought on a case by case basis.

Having said that, our organization took this approach on this issue. We agreed to back the bill as long as Big Food "earned" the immunity by disclosing more information to the consumer about the content of the food: stuff like the labeling you see in the supermarket. That way consumers have greater information about what it is they are eating and can more justifiably be stuck, to a more meaningful extent, with the "choice" they have KNOWINGLY made about what they are eating. If a restaurant or fast food place didn't want to incur the costs of such disclosure, they didn't have to. But they wouldn't get immunity.

Our proposal didn't go anywhere. The bill passed.

BTW, I live in the most conservative state in the country, Utah. Tells you something about just how true these "conservative" legislators were to principles of accountability that they immunized an entire industry solely based on pressure from business interests.

Posted by: Binky at March 11, 2004 10:17 AM | PERMALINK

I wonder when the Green folks will look at getting rid of the automobile. They can not get rid of the 2nd Amendment, so they try to sue them out of business.

Cars kill a lot more people each year than guns. How long before someone sues them because their car was improperly used to kill someone.

Maybe the Greens can do the same thing to Car Companies as the 2nd Amendment attackers can do to the Gun Manufacturers.

Anyway, if this all makes it so I can not get a good burger on the road, buy an American Car or Weapon, well damn, what the heck will the world be coming too.

Posted by: James Stephenson at March 11, 2004 10:17 AM | PERMALINK

Besides, it seems to violate the spirit, if not the letter of the constitution (article 1 section 9 paragraph 3)
?No bill of attainder or ex post facto Law shall be passed. No bill of attainder or ex post facto Law shall be passed.?
This seems like a Bill of Attainder...

They are doing the same thing with the gun manufacturers and distributors.

Posted by: ____league at March 11, 2004 10:17 AM | PERMALINK

Meant to say:

They are doing the same thing for the gun manufacturers and distributors.

Posted by: ____league at March 11, 2004 10:19 AM | PERMALINK

Seems to me that a court can still throw out any lawsuit it deems to be frivolous.

Posted by: David W. at March 11, 2004 10:19 AM | PERMALINK

Early suits against the tobacco industry were also laughed at...
if you read the suits and understand the legal reasoning...the issues are becoming more refined and some of the suits previously being rejected are now coming back.
We are coming to realize that obesity is a national health problem..the surgeon general compared obesity to terrorism (of course problems in the Bush world are caused by terrorism)
We are trying to come to grips with how to change policy. Unfortunately too often our legal system seems the most responsive and fastest way.
If it weren't for the early GASP lawsuits there probably would still be smoking in public buildings and no warnings on cigarette packs.
US is a country with food issues and we have no idea what to do. The only thing we know for sure is Americans like diets that tell you eat more and lose weight.

Posted by: ann at March 11, 2004 10:22 AM | PERMALINK

I don't like laws like this either. They tend to grant protections that are overly-broad.

Posted by: Indiana Joe at March 11, 2004 10:23 AM | PERMALINK

Sebastian, you simply display your ignorance when you say things like this. You are a smart guy. Read up on this stuff before you pop off. There is absolutely no basis to say, as you do, that "these suits . . . are annoyingly recurrent."

The idea that we are deluded with tort claims in state or federal court is BOGUS. In my state less than 5% of all lawsuits filed are tort claims. I live in a state with 2.5 million people. Public records show that last year less than 250 medical malpractice lawsuits, one slice of tort cases, were filed.

250.

And why do you believe most states DON'T have a comparative fault system already? They do! In my state a plaintiff has to prove that the defendant(s) were MORE responsible than the plaintiff to win a dime. In other words, if the jury finds that the plaintiff is 50% responsible, he loses! That's more restrictive than your own proposal.


Posted by: Binky at March 11, 2004 10:26 AM | PERMALINK

Yes, people are responsible for their own consumption but I also think it's true that many people simply aren't aware of the EXTREME amount of fat and calories these things have. For example, who would imagine that you're better off getting a McDonald's cheeseburger than one of their new lowfat alternatives--the chicken salad?

And how many parents even know how many calories their kids are SUPPOSED to eat in a day let alone how many calories are in a Happy Meal and whether that is okay?

Actually, nutrition information from McDonald's is readily available (pamphlets are available at individual franchises, too). In general, the fast food industry gets a bad rap when it comes to disclosure of nutrition information; they're actually pretty good about it. It's the increasingly popular chains like Ruby Tuesday, Outback, Olive Garden, etc., that play it cagey with their info -- and some of their products are far, far worse than anything fast food dishes up. (An independent analysis of Outback's cheese fries found that the entire plate had 3,000 calories -- and that's without the ranch dressing.)

Hence the proposed Menu Education and Labeling Act, which would require restaurants with more than 20 franchises to publish complete nutrition info on their products (so no, this won't affect your favorite Mom 'n Pop cafe!). Yet some of the same legislators who support the "Cheeseburger Bill" oppose MEAL because of its "onerous" demands on industry. I say if you're going to oppose the "Cheeseburger Bill" because people should be individually responsible for their own weight problems, you should at least let them have the information that allows them to exercise that responsibility completely.

The fact is, it takes a counterculture mindset in the U.S. to lose weight -- to choose nutrious, unprocessed, home-cooked meals over restaurant fare, or to walk and bike instead of driving. (More than once I've been out walking only to have a well-meaning neighbor assume that I had car trouble, and offer me a lift.) It would be incredibly helpful if more health insurance companies paid for weight loss education and support programs -- but most will only do so if there's a comorbidity (diabetes, heart disease) and sometimes not even then. Hell, I can't even use my own flex dollars on a weight loss program unless there's a comorbidity. Wouldn't it make more sense to fund weight loss programs before costly conditions like diabetes set in? Or to support active living projects that encourage the construction of pedestrian-friendly communities?

Posted by: galnoir at March 11, 2004 10:29 AM | PERMALINK

Well I for one am glad that Congress has finally gotten the backbone to pass this necessary protection for a vital part of our economy's manufacturing sector.

Posted by: Chris Leithiser at March 11, 2004 10:29 AM | PERMALINK

Ah, one of those lovely issues where I disagree with both sides. The lawsuits are foolish and ill-founded on any number of levels and have been rightly laughed out of court. But, they are getting rightly laughed out of court, so sweeping immunity is entirely unnecessary posturing.

And as a self-accepting fat person, I get the added benefit of seeing two groups arguing over how best to hate me. Always a pleasure.

Posted by: BStu at March 11, 2004 10:33 AM | PERMALINK

The bill is idiotic. Lawsuits like the ones it purports to ban will, under current law, get dismissed as quickly as they get brought. Adding a law prohibiting them won't keep them from being brought, it just adds another reason to dismiss them, and one that's no faster or more efficient.

To the extent that all the bill does is provide a new reason for dismissing a tiny class of frivolous lawsuits, it is useless and therefore a bad idea for that reason alone. If it somehow has a broader effect, keeping plaintiffs from bringing suits that aren't self-evidently nonsensical, then it is bad for that reason as well.

Posted by: LizardBreath at March 11, 2004 10:33 AM | PERMALINK

The IRS allows you deduct the cost of dieting
and insurance companies in their usual assbackward way are starting to provide coverage

as for personal responsibility --that is only as good as the information you get and for some people medically not possible.

I guess you all think the tobacco industry should still be running around unfettered?

Posted by: annie at March 11, 2004 10:35 AM | PERMALINK

If you cannot tell just by looking at it that most fast food is very bad for you then you need help. There is nothing addicting about fast food. If you get fat off of it, you only have your own lack of control to blame for it.

If the fat asses who get obese on McDonalds would cut back what they eat for six months and work out like a fiend then they'd lose a hell of a lot of that weight. If they keep the exercise regimine up they could safely eat McDonalds a few times a week without gaining much, if any, weight from it.

You know what's a great food for keeping yourself from gorging on fatty food? Good yogurt. Go get some Breyers, or even better, Yoplait. It's very good for your blood sugar and the Yoplait Lights taste almost exactly like the desert that they're flavor is based on. The Yoplait Lite Boston Creme ones taste almost exactly like a Boston Creme pie/roll.

Posted by: Mike at March 11, 2004 10:41 AM | PERMALINK

I'd like Congress to pass a law exempting from lawsuit any company run by my friend Bob.

Posted by: Spinning Tops at March 11, 2004 10:45 AM | PERMALINK

I wonder if the claim "We must prevent lawsuits of this sort because they promote obesity" is true.

I have heard of data which would suggest the current obesity problem owes more to lack of activity than to overeating. I do not know this to be fact though. If this is the case, it is more of a personal responsibility/structure of society issue.

Posted by: Roland at March 11, 2004 10:45 AM | PERMALINK

Most fat people (including the ones who participate in these lawsuits) aren't fat because they are gorging on fast food. That's one reason people like me are so disgusted by the lawsuits, because it reinforces a bigoted stereotype. The lawsuits were a long-standing wish of anti-fat crusaders, the not the get-rich-quick scheme they are made out to be. So now we have the lovely arguement between those who judge fat people to be immoral and those who paint fat people as pitiful victims. Neither is a fair or accurate assessment.

Posted by: BStu at March 11, 2004 10:48 AM | PERMALINK

I'm all for letting the courts do what they're supposed to do. Let the issue work itself out in the courts. It's not a question of whether it's bad to use the courts to affect societal change; rather, it's a question about whether Congress should be granting immunity to any industry without allowing a complaint to be heard.

Some change in "social policy" has been spurred by all this, some of which is in my opinion a good thing, but focusing on the outcome is ignoring real issue: that some elected officials are listening too much to fast food lobbyists. I suspect the big chains aren't so much as worried about the outcome of the lawsuits than they're worried about the negative press. But all that is beside the point. Even discussing this suggests that we don't have faith in the court system to perform the the simple function of deciding which cases have merit. Frankly, I have quite a bit more trust in people who don't depend upon large industries to fill their campaign coffers, whatever their ideology.

Posted by: landlubber at March 11, 2004 10:52 AM | PERMALINK

Frankly, I have quite a bit more trust in people who don't depend upon large industries to fill their campaign coffers, whatever their ideology.

Unfortunately, in some states, for example Texas, judges spend a lot of money getting elected.

Posted by: ____league at March 11, 2004 10:55 AM | PERMALINK

OT:
Just saw Kerry on FauxNews. He has "no intention of apologizing" for his remarks. It's gonna get ugly folks, but Kerry's showing spunk, and you know what? I'm starting to actually like him. If he can actually stand up to the Attack Dogs, and fight back, and get his message across, perhaps there IS a chance. . .

Posted by: Occam's Cuisinart at March 11, 2004 11:04 AM | PERMALINK

This is a blatant give-away to an industry that should certainly have known better. I would like to make just a couple of points and provide one example.

1. The jury system works and companies like McDonalds are not going to be heavily fined for simply providing high calorie burgers.

2. On matters of principal, NO ONE should be exempt from the justice system. I am sorry, but no one is above the law and it's not like the fast food industry can't hire the best legal talent out there.

The best example I can think of is the McDonald's coffee case where a woman was awarded appx 1 million dollars for a coffee burn. This was used and is still used as a prime example of the justice system gone wrong, but what was not reported was that McDonalds had known for years it was coffee was not simply too hot, but was WAY TOO hot and capable of producing third degree burns like you would get if you were trapped in a fire. Their own engineering group warned them that the coffee was too hot. The reason they didn't reduce the temperature of their coffee to a level reasonable people expected "hot" coffee to be was that the quality of bean they used was so poor the coffee tasted like shit unless served at a nuclear level of heat. Finally, because they were self-insured, they litigated every coffee case to the max and, in fact, had beaten the rap so to speak on other cases. This woman had to have skin grafts from another part of her body because this coffee disintegrated her skin.,

Anyway, the justice system is more than capable of determining whether or not the fast food industry has been playing fast and loose with our health and their food.

Posted by: Garth Sullivan at March 11, 2004 11:04 AM | PERMALINK

People who get DUI's or in car crashes should be able to sue people who sell booze.

Thats the same as saying someone who is too much of a pig to stop shoving burgers in their mouth can sue a fast food franchise because the food they make is "irresitable".

Its like a law suit against a swimming suit company, because you got sunburned.

Legislate, regulate, haven't they ruined my life enough without trying to control it even more?

Posted by: IXLNXS at March 11, 2004 11:08 AM | PERMALINK

considering that fast food is probably the biggest employer in America, providing some of the most advanced technical and managerial jobs to American workers, it just makes sense to exempt them from being sued. just think what would happen if they went the way of asbestos!

Posted by: bryan at March 11, 2004 11:08 AM | PERMALINK

In fact bars are legally responsible when they "overserve" patrons....

Posted by: ann at March 11, 2004 11:10 AM | PERMALINK

Oh yeah and the little old lady who got scalded by McDonald's coffee, she tried settling out for just medical damages. The company told her to shove it.

A "JURY" awarded her that cash. A jury of Americans, tired of big buisness, and big government, took what action they could for a fellow American.

Posted by: IXLNXS at March 11, 2004 11:11 AM | PERMALINK

Not much to add to a lot of good comments made upthread but this. The fast food lawsuits have, so far, been laughed out of court, for good reason which (as many have noted) undermines the argument for such a law.

But there is a subgroup of these lawsuits that, I suspect, will become more plausible: those taken by obese children.

It's all well and good to claim that adults should be able to figure out the detrimental aspects of fast food. But a lot of obesity today occurs among children. Many of them are faced with fast food at school, where their parent have limited control over what they're getting. And most kids are barraged with a bunch of advertising that makes kids want more more more.

I'm not saying this problem should be solved by awarding these children a multimillion dollar settlement. But I do think that this problem needs to be addressed. And the threat of lawsuits is a very good way to do it.

Posted by: emptywheel at March 11, 2004 11:13 AM | PERMALINK

Let the judge, jury, and appellate courts sort this out. The judge and appellate courts are experts in the law, and the juries represent the community. If the community wants to put liability on an industry and it falls under the general rules for torts, then let the liability fall where it will. Some additional points:

(1) Yes, it costs money to litigate. So what? Chalk it up to the cost of doing business. Don't want to risk suit, don't go into business.

(2) "Personal responsibility" is not applicable here. The fast food lawsuits are essentially products liability suits when brought by customers - and choice is no defense in products liability if the claim is design flaw. And fast food is an inherently engineered product (although a court might declime to see it that way - showing that fast food is engineered will fall on the plaintiff). The idea is that a person cannot take responsibility for the engineering of a product which the person may not fully understand. Thus there is no responsibility.

The other products liability claim might be lack of adequate warning. Micky D's started publishing information about the nutritional content of their food. This shifts the burden and responsibility back to the plaintiff - case closed. This might even be a defense against a design defect case - adequate notice of the defect.

(3) If fast food consumption is leading to greater obescity (and the incident complications), then this cost will be born by third parties such as myself via increased health care costs. That is both through increases in medicare/medicade spending and premium increases on health plans. In this case, there is a market externality not captured by the price of the food. So let the government sue to recoup costs (as in the tobacco suits). Then the fast food restaurants will raise prices on the food - forcing the customer to pay closer to the true cost of the food. Don't want to pay extra? Eat healthier, otherwise pay the price that includes the cost to third parties.

While it is all well and good to talk about personal responsibility, that only makes sense if the transaction costs capture the cost to third parties. Otherwise you have personal irresponsibility - people not paying the true cost and instead shifting that cost to other people. Cost shifting is not taking responsibility for your actions.

Posted by: The Templar at March 11, 2004 11:24 AM | PERMALINK

I'm a plaintiff's lawyer, in practice for 27 years. Accept that fact either as proof of my bias or proof that I might know something about the subject matter of this thread, as you see fit. Here's my two cents: There is no need for this bill. The "case" that gave rise to the bill has already been thrown out of court. The twin purposes of this bill are 1) to pander to the Republican base (Chamber of Commerce, NAM, etc.) and 2) to force thinking members of Congress into votes that can be characterized in the fall election as "votes in support of frivolous lawsuits". Shameful...

Posted by: Gary Stoneking at March 11, 2004 11:28 AM | PERMALINK

I'm a plaintiff's lawyer, in practice for 27 years. Accept that fact either as proof of my bias or proof that I might know something about the subject matter of this thread, as you see fit.

I accept that fact as evidence that you're looking out for your own interests.

Posted by: FastNBulbous at March 11, 2004 11:40 AM | PERMALINK

I have one comment on comparing fast food cases to tobacco cases:

Eating fast food only hurts you (personal responsibility); smoking hurts the people around you (civic responsibility). If smoking were proven to only harm the smoker, then it would fall back into the personal responsibility area. But by denying that tobacco smoke hurts anyone, tobacco companies allowed smoker to unintentionally harm others as well as themselves.

I was once forced to quit a job because of extreme bronchitis caused by all my smoking colleagues. The day I'm forced to quit because my colleagues eat too much MacDonald's, I'll change my position.

Dorothy

Posted by: Dorothy Lindman at March 11, 2004 11:40 AM | PERMALINK

There's only one aspect of this debate I have an unequivocal opinion on: aggressive marketing of junk food and fast food to children (not to mention sales of junk food and soda in the schools). Children can't be expected to exercise the same kind of self-discipline as adults -- one of the basic tasks of growing up is to develop that self-discipine. And sure, the parents should step in to exercise that discipline for them, but if they don't that's not the child's fault, and it's the child who's being harmed. The time to develop good eating habits is in childhood. If you don't, it's very difficult to develop them later.

Posted by: Janet Lafler at March 11, 2004 11:41 AM | PERMALINK

2/3 of Americans overweight = their own damn fault.

Glimpsing a nipple on the Superbowl = bloody murder.

Never has the legislation taken up on consecutive days in the U.S. House been so incongruous, to my knowledge.

Posted by: Grumpy at March 11, 2004 11:42 AM | PERMALINK

I have a thoughtful libertarian friend who has tart words about tort lawyers. He owned a Ford Explorer with Firestone tires a few years ago when it was widely reported that the tires failed under stress.

I spoke to him after the news broke and he said he was pleasantly surprised that he had already received a letter from Firestone describing the schedule for replacing his tires. He pointedly stated that this was a much quicker response than those darn regulators at the National Transportation Safety Board could hope to inspire.

I responded, "Ah, yes, the Miracle of Punative Damages."

Posted by: Rod Hoffman at March 11, 2004 11:43 AM | PERMALINK

Jeez, Kev, you're obviously another one-a dem libruls who is wishy washy on issues. Can't make up his mind and take decisive action. Wants to weigh facts, consider options and examine evidence before taking action. A waffler. A thinker. Let's just DO something! Maybe a constitutional amendment. Or a war.

Posted by: Wayland at March 11, 2004 11:45 AM | PERMALINK

Obesity will soon surpass smoking as the leading cause of preventable death.

Nice attitude Dorothy if something doesn't affect your directly you don't care.

Well obesity causes higher insurance premiums
is that enought for you. So when your employer lays you off because they cannot afford to pay for health insurance will that make the point.

Posted by: ann at March 11, 2004 11:45 AM | PERMALINK

Death isn't preventable. Just delayable.

Posted by: Janet Lafler at March 11, 2004 11:55 AM | PERMALINK

I think juries have enough common sense to throw out ridiculous lawsuits. What these nitwits really want to do is remove any risk from their business.

The threat of being held civily liable is all that keeps some corporations from running amok. Just my two cents worth.

Posted by: four legs good at March 11, 2004 11:55 AM | PERMALINK

"(1) Yes, it costs money to litigate. So what? Chalk it up to the cost of doing business. Don't want to risk suit, don't go into business.

(2) "Personal responsibility" is not applicable here. The fast food lawsuits are essentially products liability suits when brought by customers - and choice is no defense in products liability if the claim is design flaw. And fast food is an inherently engineered product (although a court might declime to see it that way - showing that fast food is engineered will fall on the plaintiff). The idea is that a person cannot take responsibility for the engineering of a product which the person may not fully understand. Thus there is no responsibility."

Point 1) is weird. Does that mean we should never do anything to minimize litigation costs? Curely you are overplaying this one.

Point 2) is certainly one of the tactics which will be used, but in my world that is evidence that the system is broken.

"And why do you believe most states DON'T have a comparative fault system already? They do! In my state a plaintiff has to prove that the defendant(s) were MORE responsible than the plaintiff to win a dime."

I understand comparative fault just fine: in fact I understand it well enough to know that it is the defendants in aggregate that have to be more responsible in SOME jurisdictions. Guess what? McDonalds can be found in all states.

I think the whole tort system has gone far beyond what I think implements justice. The silly, yet legally defensible argument on 'design' above is a classic example.

And all you who hide behind the fact that the suits have been thrown out thus far need only wait a few years. Combine a sufficiently outrageous legal theory with a sufficiently silly judge and we will have one of these cases go to a jury with instructions which make liability assessment against a company quite likely. There will be appeals which the plaintiff will lose the first 3 or 4 times. But it will cost millions to defend. After a while we will be used to it, and someone will win a case. This is exactly how silly new legal theories gain long-term traction.

Posted by: Sebastian Holsclaw at March 11, 2004 12:14 PM | PERMALINK

A solution in search of a problem.

Posted by: C.J.Colucci at March 11, 2004 12:15 PM | PERMALINK

Headlines state that obesity caused deaths are approaching that of tobacco--Looks like we will have to eat our burgers outside, pretty soon!

--In the future filthy people will huddle around entrance-ways--their eyes shifting back and forth over mouths hidden behind Mac bags, munching away,..

Posted by: Jon Stopa at March 11, 2004 12:17 PM | PERMALINK

Janet,
Someone has to give those kids money to buy junk food. My parents rarely allowed me and my siblings to buy candy and fast food, no matter how much we whined and begged.

ann,
By your logic, obesity also reduce SS payouts, so it balances out.

Posted by: Mo at March 11, 2004 12:20 PM | PERMALINK

How about a class-action lawsuit against all law firms to recoup for consumers the added costs built in to the price of everything to cover the eventuality that somewhere, someplace, is a jury that will find a company guilty for allowing morons to use their products ?

Posted by: mark safranski at March 11, 2004 12:21 PM | PERMALINK

If you have an anti-regulatory bunch of numb-nuts in DC (aka Bush Administration) using lawsuits for ersatz regulatory controls is, basically, your only alternative, Kevin.
And, if Shrub is reelected, you'll see more industrial-lawsuit exemptions.

Posted by: Steve Snyder at March 11, 2004 12:22 PM | PERMALINK

Dear Kevin

Obesity may be a matter of personal responsibility for adults, but children deserve some form of protection. If the tort system is denied them there is now no recourse. Most of the same arguments marshalled against obesity were used against tobacco liability.

Ed Cogburn

Posted by: Ed Cogburn at March 11, 2004 12:24 PM | PERMALINK

not if you include social security disability payments

Posted by: ann at March 11, 2004 12:38 PM | PERMALINK

As others have said, none of these lawsuits has been even close to successful, so the bill is addressing a 'problem' that doesn't exist.

The more important point, though, is that it makes no sense to pass the bill unless it is utterly inconceivable that one of these lawsuits would be justified. I can imagine such scenarios, generally involving outright deception about the nutritional content; if that sounds far-fetched, let's not forget KFC's short-lived ad campaign in which they tried to sell the idea of their chicken as healthy food.

The problem with all 'tort reform' (as formulated by the Republicans) is that the most egregious offenders are the biggest winners. That would be the case here too.

Posted by: Tom Hilton at March 11, 2004 12:42 PM | PERMALINK

The tobacco cases are a poor analogy--my recollection is that the key fact in thsoe cases was that the tobacco companies knew their product was dangerous, and lied about it.

The Michigan Supreme Court explained how all this works in Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977):

"Even if a person recognizes that his conduct involves a risk of invading another person's interest, he may nevertheless engage in such conduct unless the risk created by his conduct is unreasonable.

"The reasonableness of the risk depends on whether its magnitude is outweighed by its utility. The Restatement provides: 'Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.' Restatement [Torts 2d], § 291.

"The balancing of the magnitude of the risk and the utility of the actor's conduct requires a consideration by the court and jury of the societal interests involved. 29 The issue of negligence may be removed from jury consideration if the court concludes that overriding considerations of public policy require that a particular view be adopted and applied in all cases.

"A court would thus refuse to allow a jury to consider whether an automobile manufacturer should be liable for all injuries resulting from manufacturing automobiles on the theory that it is foreseeable that some 50,000 persons may be killed and hundreds of thousands injured every year as a result of manufacturing automobiles. The utility of providing automobile transportation is deemed by society to override the magnitude of the risk created by their manufacture."

In other words, there is a settled common law method of dealing with these cases, which works, and which renders legislative action unnecessary, except as political grandstanding.


Posted by: rea at March 11, 2004 12:46 PM | PERMALINK

In the manner of over all tort reform,
The proposal made by Senator John Edwards is quite good. It's thoughtful and addresses the issue of goofy suits without punishing legitimate complaints by limiting awards.

Posted by: ann at March 11, 2004 12:47 PM | PERMALINK

The tobacco suits are not JUST about lying --
it's about product liability as well. Even people who began smoking after the cigarettes carried the warning labels have won awards.

The suits were also about the advertising and to whom the advertising was directed --teens for example.

The tobacco lawsuits were not about whether they lied although they did but about the product itself. And then because we have a public health policy to stop people from smoking -we acted on the issue of advertising to youth and
on the public airwaves.

If as a community we think people who eat fast food are stupid --shouldn't we say that?


Posted by: ann at March 11, 2004 12:53 PM | PERMALINK

The numbers saying fatness will cause all these deaths are heavily cooked and usually are offered with little indication where they come from, lest anyone look at them too long and notice. The most often quoted number, 300,000, is an outright lie that just kept getting repeated. In England, the Health Minister recent got the numbers wrong when decrying how much money was spent on fatness related disability claims. The true number was "accidentally" multiplied by 1000 to make a more convincing case. Big Diet rakes in billions a year on products which completely don't work. A far more grevious fault than the tenious connections being drawn in the fast food cases. The government's response was a veritable slap on the wrist. For selling a product which doesn't work, the diet companies settled with the government by putting the tiny "Results not typical" disclaimed. Can you imagine other products including such a disclaimer? An ad with a new car whipping down the highway, but in small letters at the bottom of the screen "Car cannot be driven". Or a beer ad with "Bottles normally empty". Many of the oportunists were the same people pushing for these law suits. Its all posturing. I don't see either side being good in this dispute.

Posted by: BStu at March 11, 2004 01:02 PM | PERMALINK

It's at times like this that I'm glad we keep kosher.

Our kids wouldn't DREAM of asking for a big mac, though there is a Kosher Burger place, two Kosher Pizzarias, and a great Kosher Chinese place here.

That being said, if you want to regulate bad players in business, you have two options:

* Invasive regulatory regimes.

* Punitive damages.

Remember, the "Million Dollar Paint Job" case against BMW, where they concealed that they had touched up minor dings from shipping, was the 4th or 5th time that they had lost in court.

The purpose of punitive damages is to PUNISH, and so deter illegal behavior.

After the million dollar judgment, BMW stopped deceiving its customers.

I would assume that the people who oppose punitive damages would also support not throwing the guy who boosted my stereo in jail.

After all, fair is fair, just make him replace it. Who cares if he gets caught only 5% of the time, and so profits from his crime.

As to the "silliness" of the fat lawsuits, I would agree that I as a 41 year old adult who needs to lose about 20 pounds, should be laughed out of court.

The problem is that these folks are cutting Faustian bargains with ELEMENTARY schools to get kids hooked on this stuff.

It's the gastronomic equivalent of chile molestation (If anyone wants to use that, please cite me), and I have no problem with some sharp lawyer going after them on that one.

Posted by: Matthew Saroff at March 11, 2004 01:04 PM | PERMALINK

Mo,

Of course somebody has to give kids money to buy junk food. Your parents refused to fund your desire for junk-food, but many parents don't refuse. Then again, did you get an allowance? If so, what did you spend it on? What stopped you from spending it on junk food? My parents didn't keep soda or chips or much candy in the house, and we never ate fast food, but they didn't have much control over what I ate when they weren't around, including at friends' houses.

In any case, the parents' lack of judgement is not the kids' fault.

I don't know how old you are, but when I was a kid there was little or no junk food available at school. Now, in many schools, there is. And if junk food is available in schools, kids can use their lunch money to buy it.

Posted by: Janet Lafler at March 11, 2004 01:12 PM | PERMALINK

Good comments.

I like Mark Twain: Part of the secret of success in life is to eat what you like and let the food fight it out inside.


Also, the earlier comment, "Well I for one am glad that Congress has finally gotten the backbone to pass this necessary protection for a vital part of our economy's manufacturing sector." made me shoot coffee out my nose. It was kind of hot, maybe I'll sue Mr. Coffee Inc.

Posted by: garth at March 11, 2004 01:22 PM | PERMALINK

I don't know how old you are, but when I was a kid there was little or no junk food available at school. Now, in many schools, there is. And if junk food is available in schools, kids can use their lunch money to buy it.

Just wanted to back you up on this. I just got out of the public school system, and all through high school, I had a very difficult time buying healthy meals that tasted good through the school. Your options were fast-food burrito, fast-food pizza, or a limp and mealy turkey sandwich... guess which one nobody picked, because it was so disgusting?

It's easy to say "then pack a lunch," but more difficult if you realize that students are getting up at 4 or 5 in the morning in order to make school buses, get to zero period, or finish their homework before they come to class. There's no time, and lunches that sit in the fridge overnight are almost as bad as the "healthy" ones in the cafeteria. I'd have loved to bring frozen food to school - Lean Cuisine or something like that - but until senior year, no teachers would let me put it in their freezer.

So yeah, it's difficult to eat well at school.

Posted by: Flourish at March 11, 2004 01:27 PM | PERMALINK

Garth: LOL

Sebastian: I take it back. You are not intelligent, just disingenuous. Until you stop spouting the ideological line and start speaking rationally in a way that addresses the facts, you should simply be ignored.

Posted by: Binky at March 11, 2004 01:28 PM | PERMALINK

couple the shameless marketing to kids with the recent recommendation that NO advertising should be aimed at kids under 8, because they're incapable of recognizing and distinguishing advertising messages as sales attempts.

companies should be held responsible for abusing children's vulnerabilities.

And from a totally different perspective, I have a very hard time seeing how any industry becomes entitled to a blanket protection of any kind. Until McD's and other purveyors can prove beyond any doubt that their products are 100% safe, at any/every level of exposure, they're not entitled to immunity.

On that note, the issue may be one of the fact that this food should carry a warning label, much like cigarettes. Anyone yet heard of "Supersize Me"? Guy eats nothing but McDonald's for 30 days, gains 25 pounds, begins having extreme medical problems - after only 30 days. Look for it in your art theatres. Perhaps it's because of this movie and/or the suits that they're cutting Supersizes.

Posted by: Wendy at March 11, 2004 02:08 PM | PERMALINK

Well if these obesity burger law suites ever have success there are a few companies that make beer that will be hearing from my lawyer. ;o)

Posted by: MJ at March 11, 2004 02:12 PM | PERMALINK

I think many key issues have been identified in this thread.

One issue I have is the way the fast food companies market to poor people. I live in Minneapolis, if I drive to North Minneapolis, which is onr of the poorer parts of the city, the streets are lined with McDonalds, BK, Taco Bell, White Castle, etc. . . The food there is cheap and easy to get. But the only large supermarket in the area closed several years ago. The residents of these neighborhoods have few options when it comes to healthy food without driving to another part of the city (they can't currently ride the bus due to a transit strike). For them the fast food is cheap and easily accessable, vs. more expensive healthy food which they have to travel for. What would you do?

On the other hand, I don't have an easy solution as I think people do have responsibility for their choices. However, when some state decides that they are paying too much for medical care for the effects of obesity (heart disease, type II diabetes etc. . .) they may go after the industry and they may have a good case.

I do think the legislation is a bad idea as the potential for future liabilities could force the industry to re-think the way it markets it's product.

Selling fast food to kids in school though? That has got to be stopped.

Posted by: David Perlman at March 11, 2004 02:12 PM | PERMALINK

Andrew Cory wrote: "What I am getting at is that there are more than enough checks in the system to protect industries from angry citizens. Having congress intervene for one industry for one specific offense seems rather superfluous, not to mention that it stifles one avenue for citizens to seek recompensation for actual damages (assuming such damages have actually happened)."

"Besides, it seems to violate the spirit, if not the letter of the constitution (article 1 section 9 paragraph 3)

“No bill of attainder or ex post facto Law shall be passed. No bill of attainder or ex post facto Law shall be passed.”

This seems like a Bill of Attainder..."

No, this is most definitely NOT a Bill of Attainder. A Bill of Attainder is what English kings used to punish people, when the kings knew that those people had not committed any crimes. The English kings would have Parliament pass a law essentially saying those people should be punished (e.g., by taking their lands, or even putting them to death) without trial.

The situation was that the kings couldn't rely on citizens of a jury to do bad things to the innocent people, so the kings used Parliament to do it. (Kings had more sway with members of Parliament, just like a President has more sway with members of Congress than citizens on a jury.)

This law by Congress would be SHIELDING a group from civil law. Bills of attainder PUNISH people in complete absence of any law defining what they did wrong.

http://en.wikipedia.org/wiki/Bill_of_attainder

Mark Bahner (not a lawyer, but I play one on TV)

Posted by: Mark Bahner at March 11, 2004 02:12 PM | PERMALINK

Hey, Binky. Good argument.

Everyone else. I'm not arguing specifically for any kind of 'Big Food' exemption. But I am arguing for a tort concept that falls much more in line with the idea that people are responsible for their actions. Parents can and should control what they and their children eat. At McDonald's I have seen food charts available for at least a decade. If you can't figure out that a Big Mac has fat in it just by tasting it, you could look at the chart.

Posted by: Sebastian Holsclaw at March 11, 2004 02:13 PM | PERMALINK

Janet,
I graduated from a public high school in 1996, so there was plenty of junk food options around (soda machines, candy, fast food, etc.). But if the problem is fast food at schools, that should be handled by the PTA and the school board. Why should McDonalds get sued because the local high school buys food from them. Isn't the responsibility on the schools themselves for taking the easy way out and serving crap to their student body? Kids do get an allowance, but unless they're getting a lot more than I did when I was in school, you can only buy so much junk food. I spent some of my money on junk food and quite a bit on soda. Fortunately, the ban at home helped even it out and my mom made pretty healthy food. I agree a parent's lack of judgement isn't the child's fault, but it also isn't McDonald's fault either.

Posted by: Mo at March 11, 2004 02:14 PM | PERMALINK

ps re: the coffee suit - the jury award was reduced by a judge to something like $480,000 - far less than the multi-million dollar numbers that the urban legendeers love to throw around to try to blame the victim. check out the full story at http://www.lectlaw.com/files/cur78.htm

Posted by: Wendy at March 11, 2004 02:14 PM | PERMALINK

"1. The jury system works and companies like McDonalds are not going to be heavily fined for simply providing high calorie burgers."

Sort of like the cigarette companies aren't going to get heavy jury awards against them for selling cigarettes (with huge warning labels that those cigarettes are dangerous)?

Sort of like light plane manufacturers aren't going to get heavy jury awards against them because light plane pilots are incompetent?

http://www.econlib.org/library/Enc/Liability.html

"Until recently, property and liability insurance was a small cost of doing business. But the substantial expansion in what legally constitutes liability over the past thirty years has greatly increased the cost of liability insurance for personal injuries. For U.S. producers of private aircraft, liability insurance expenses now average $100,000 per plane produced, leading Cessna to cease production and Beech Aircraft to all but eliminate private aircraft production as well. These substantial costs arise because accident victims or their survivors sue aircraft companies in 90 percent of all crashes, even though pilot error is responsible for 85 percent of all accidents."

Don't get me wrong. I'm not saying this bill is a good bill. (I don't think it is.) But I could see liability insurance costs increasing the cost of a Happy Meal(TM) by 10%, 20%, 30%, or more.

Posted by: Mark Bahner at March 11, 2004 02:25 PM | PERMALINK

David Perlman brings up an excellent point re: very low cost of fast food, reminding me that I have seen Clark Howard, Atlanta-based consumer advocate, promote eating fast food as being more economical than the alternatives, due to proliferation of dollar menus.

and in thinking about issues of cost and pandering to poor people (ever notice the very heavy dosage of McD's ads that seem to be geared to the hip-hop crowd?), we really need to remember that 25% of the working population does not make enough to live on. so economic incentives are real, and they're meaningful and powerful, if your take-home pay is $175/week.

Posted by: Wendy at March 11, 2004 02:34 PM | PERMALINK

I would prefer to change civil lawsuit rules to strengthen the concept of personal responsibility for doing things like eating food that you buy

ah, yes, responsibility - always personal, never applies to the companies doing the million dollars' worth of advertising and selling the stuff

have a look at why the uk govt brought in nutrition standards for school meals one day

(looking forward to morgan spurlock's "super size me" http://www.supersizeme.com/ - will stir up the debate further i hope)

Posted by: hypatia at March 11, 2004 02:41 PM | PERMALINK

Sort of like the cigarette companies aren't going to get heavy jury awards against them for selling cigarettes (with huge warning labels that those cigarettes are dangerous)?

The whole point of those suits was that for years the companies concealed evidence about their products and basically lied to the public about it. Completely different and much more justifiable case.

Posted by: Irrational Bush Hatred at March 11, 2004 02:55 PM | PERMALINK

Litigation is something this society understands and rewards. Now in a backdoor attempt at tort reform, the Bush administration is picking on obese people because they are not a sympathetic minority. While out of the other side of the Bush waffle is the Center For Disease Control talking about preventable deaths from obesity being out of control.

Posted by: ann at March 11, 2004 03:05 PM | PERMALINK

I have as much fun as anyone watching the Repugs give new meanings to the word 'reactionary' with these gross intrusions into the delicate balance of Constitutional power. But we must never forget that this is all part of their Master Plan. Only when corporations have more protections and rights than individual citizens will Repug investment accounts be truly secure.

Posted by: theplotsickens at March 11, 2004 03:09 PM | PERMALINK

Have any plaintiffs won such a suit? If not, I say let the courts do their job.

rachelrachel

Wouldn't winning a lawsuit be even more indication that the proposed bill is wrong?

Brent

Posted by: brent at March 11, 2004 03:28 PM | PERMALINK

Actually, I didn't say that I thought McDonald's should be sued. Look back at my post. I DO think that advertising aimed at kids should be much more strictly regulated than it is.

Posted by: Janet Lafler at March 11, 2004 03:43 PM | PERMALINK

Just wanted to point out that fast food companies actually get a lot of support from various government policies. Corn subsidies mean cheap corn, which means cheap corn syrup and cheap beef. Food manufacturers have tremendous power over what gets defined as a "healthy" diet by the government. Planning and zoning laws often support the proliferation of franchises.

Posted by: Janet Lafler at March 11, 2004 03:51 PM | PERMALINK

Sebastian, Sebastian, Sebastian ...

Point (1) is weird? Why not toss out sexual harasment, negligence, and vicarious liability while we are at it? That would save a lot of litigation costs too. Oh wait, the courts exist to protect people. Besides, if anyone gets too out of line with a frivilous theory, FRCP 11 sanctions can be requested in fed court(and most states have stricter provisions). Sorry, litigation is a business cost pure and simple.

Point (2) - strict liability in products law is a bad idea? The manufacturer has total control of the manufacturing process of a product. Who knew or could have known that Pintos exploded? The burden is placed on the manufacturer here - the plaintiff need not show negligence, only causality and injury. The defendant may argue that plaintiff used the product in an obviously incorrect way. The law is this way because in general you and I do not know how everything works, so the burden should be on the manufacturer to make sure that a product is safe.

Of course, the cost of strict liability is ideally passed on to the customer - sort of a cheap insurance policy everyone buys to cover the occasional injury causing defect in the occasional object. This is actually a good deal all around. This way if your coffee maker explodes because something went wrong on the assembly line with that unit, your covered for your injury.

What alternative would you propose for products with an undetectable flaw that causes injury when the product is used as intended?

I noticed you have nothing to say on my point (3). Guess that means costs to 3rd parties should be recoverable in your opinion?

Posted by: The Templar at March 11, 2004 04:24 PM | PERMALINK

By all means less legislation -- the gun manufacturers tried the same thing and it was shot down, so to speak.

If judges would start to get a clue, there might be more suits dismissed for being frivolous. I am a liberal, and I still believe this :)

Of course, there is no money to be had suing one's own metabolism, is there?

Scorpio
http://scorpio.typepad.com/eccentricity

Posted by: scorpio at March 11, 2004 04:42 PM | PERMALINK

I have a theory on how to change the system a bit and still keep the good part. If the problem is weak to non-existant cases that result in essentially a shakedown to get money, then let the jury decide. If a moving party cannot convince a single juror to vote for their case, a special rule kicks in. The jury can then vote if they think it is a waste of taxpayer money. If they deem it so, then the moving party must pay all costs of the defending party. The moving lawyer must pay a share of those costs based on his or her contigency fee percentage. This provides an incentive for lawyers to vet their own cases better. It provides defending lawyers more incentive to not settle so willinigly. And it is populist, pro people. No caps that have to be adjusted every few years for inflation, big incentives to call fakers on their bluffs, and frankly the economics will help drive bad lawyers out of business. Right now there is nothing to drive a bad lawyer out of business except the bar, and everyone knows how strict the bar is.

Posted by: Bob Dodds at March 11, 2004 04:47 PM | PERMALINK

To the individual who said that these companies provide ample nutritional information--

My local McDonald's has NO brochures but does have a big poster up on the wall. It's not very useful unless you want to get out of line and run over there--or have it memorized. And no, I never would have imagined that their chicken sandwich is less healthy than the cheeseburger had I not been well-informed. Subway prints its nutritional information on its napkins, because it has nothing to hide. Now THERE is a company that provides good nutritional information.

As for those going on about how people who are fat just don't control themselves, blah blah blah. There is ample--MORE than ample evidence--that obesity is caused by physiological and genetic issues. You can't understand this because you don't have those genes or physiological problems. Yes, if you have extremely strong willpower you can overcome it, but as someone who did lose 80 pounds, I can tell you firsthand it is very very very very hard--probably harder than any willpower-based decision you may ever make, except quitting smoking or drinking.

Again, I don't think food places should be held accountable financially because unlike cigarettes which are bad inherently, food is not bad inherently--the bad is how much you eat or what choices you make.

I hate fast food places and almost never eat at them. As someone without a gallbladder (thanks to losing weight too quickly for which I did not sue Weight Watchers), it just makes me sick. But I do have kids who are always bugging me to go to McDonald's. One is overweight and definitely has difficulty controlling what he eats. The others seem to regulate what they eat naturally. They are young and it's not an issue of not wanting to get fat or wanting to eat healthy--like their father (who was 6'2" and 165 pounds when I met him), they just don't have a tendency to overeat. They are not beguiled by dessert or ice cream if their meal has made them full. It just doesn't even tempt them.

So it's clear to me from my own anecdotal experience that so much of this is physiological and genetic. I can find no other explanation as to why three kids raised in the same household by the same parents have extremely different eating habits from infancy.

It's annoying that so many people want to "blame" fat people and believe it's some sort of personal failing instead of acknowledging what science has clearly discovered--there are other things at work here.

Posted by: CatM at March 11, 2004 05:24 PM | PERMALINK

Immunizing is a terrible idea. In today's world, the lawsuits are without merit. However, imagine a couple of behaviors in a post-immunization world:

1. Burger King posts signs saying a Whopper is 300 calories, but it is really 1300.

2. McDonald's invents a new process for cooking burgers that results in a fat never seen before -- trans-giggly-fat. It raises cholesterol 3 times faster than any known fat. It is also more addictive than heroin.

Should both of these companies be immunized from this type of behavior? Of course not. Is this type of behavior more likely once the company has been immunized? Of course.

Posted by: EdSez at March 11, 2004 05:35 PM | PERMALINK

Bob Dodds, interesting idea. Worth thinking hard about but only if you also put in some mechanism to make it reciprocal. How do you apply it when no member of the jury finds the defense has presented credible arguments?

Insurers and their lawyers present frivolous defenses and engage in outrageous foot-dragging regularly.

Posted by: Binky at March 11, 2004 07:22 PM | PERMALINK

I hope someone else already addressed this, but it's too late for me to read all the other posts. Sebastian, the tort system *as it already exists* doesn't give plaintiffs money for every accident. Moreover, in many states, if the plaintiff was more than 50 percent at fault for the injury at issue, the plaintiff recovers nothing. It's been that way for a long time.

The tort system isn't some kind of giveaway to fuckups. It's a way of placing responsibility (yes, responsibility!!!) where it belongs. Sebastian, if you don't believe me, grab yerself a copy of Prosser and Keeton on Torts.

Posted by: nolo at March 11, 2004 08:18 PM | PERMALINK

The often overlooked implication of the use of the term "frivilous" lawsuits is not that there are many silly suits, it is the presumption that legal sharks win too many of them. So is this a comment on the law, smart lawyers, or on the common folks who sit on juries handing out awards like cotton candy? Clearly, those arguing for these immunities believe most jurors are idiots.

Why do they hate our country so? Clearly, the republican cry boils down to this: Give me liberty, and give me a pass.

Posted by: bobbyp at March 11, 2004 08:50 PM | PERMALINK

CatM wrote "It's annoying that so many people want to "blame" fat people and believe it's some sort of personal failing instead of acknowledging what science has clearly discovered--there are other things at work here."

I was lisening to Leonard Lopate on WNYC the other week, and he was talking about how the way people evolved has something to do with this. That is, eating foods high in fat back in the good ol' days when starvation was common favored survival. With scarcity of food ever-present, people who loaded up on food when available (especially fatty foods that people store well) outsurvived those who didn't.

Unfortunately, this doesn't serve contemporary Americans well at all since we have plentiful food.

Of course, if we evolved in a way that creates this proclivity, then our biology vitiates any so-called "personal responsibility".

Then again, the religious right is still denying evolution ...

Posted by: The Templar at March 11, 2004 08:51 PM | PERMALINK

I was ambivalent about this issue until I read others' comments. Now I'm a firm supporter of the law.

Calpundit comment writers are far from a random sample, but it sounds like there are a bunch of you that *would* find McDonalds liable for their customers' weight gain.

And given the courts' over-reliance on precedent, all it takes is one of these suits to hold up through appeal. Other cases would build upon your bad decision. Apparently, we badly need this law to prevent y'all from placing the thin edge of this wedge.

McDonalds has been around since the 50's. Americans didn't start getting really fat until much later than that. Do you suppose it's possible there are other factors at work?

Here's a list of other possibly contributing factors off the top of my head:
- Ubiquitous TV ownership
- Video games
- Single parent households and homes where both parents work (not able to monitor what child eats or does)
- People driving instead of walking, especially children not walking to school
- Focused campaign to remove stigma around being overweight
- Super-size of everything at your grocery store, restaurants, and especially warehouse-style stores like Costco.
- etc...

I have no idea whether any or all of these are relevant, and I'm sure there are many factors I've missed. My point is that America's obesity is almost certainly a complicated phenomenon, and it would be crazy to single-out the fast food industry for liability.

Posted by: James at March 11, 2004 08:58 PM | PERMALINK

To those favoring these protections: Why does you so deeply averred sense of "personal responsibility" stop so suddenly when the "person" is a corporation?

Posted by: bobbyp at March 11, 2004 09:00 PM | PERMALINK

Wouldn't winning a lawsuit be even more indication that the proposed bill is wrong?

Probably.

But as long as the suits are not successful, one could state that the proposed law will have little effect. Otherwise, the law will have an effect and then we must decide whether that effect is good or bad.

Posted by: rachelrachel at March 11, 2004 09:16 PM | PERMALINK

"My point is that America's obesity is almost certainly a complicated phenomenon...."

Obviously written by somebody whose sense of moral clarity has gone awry. And that word "complicated". This is an incipient sign of flaming independent critical thought.

Obviously, the sooner we pass this law, the better.

Posted by: bobbyp at March 11, 2004 09:42 PM | PERMALINK

History is laughing at us. Too much food--that's a real problem. Ha ha. Boo hoo.

...

My favorite quote in the thread:

"As an attorney, I say let the courts deal with these lawsuits."

Well, as a vampire, I say everybody should wear their collars open.

Posted by: me oh my at March 11, 2004 11:31 PM | PERMALINK

My fear is that the law would stop suits based on McDonald's food quality.

Posted by: Sandals at March 12, 2004 03:54 AM | PERMALINK

If I recall correctly, they didn't start winning lawsuits against the tobacco companies until state legislatures entered into what amounted to a conspiracy with a group of tort lawyers; The states would pass laws barring the tobacco companies from raising any of the defenses which had worked in the past, the tort lawyers would rape them financially, and they'd split the loot. Here's a description of how it worked: http://www.cato.org/cgi-bin/scripts/printtech.cgi/pubs/pas/pa-275.html

The fear for firearms manufacturers, fast food companies, and the like, is not that they're going to lose these suits under the current legal rules. It's that this successful strategy for ganging up and looting a specific industry will be turned on them. And make no mistake, it's a realistic fear; Such a law has already been proposed in California.

Normally I'd be opposed to immunizing particular industries, but this tag team of state legislators hungry for money, and tort lawyers who want a law guaranteeing they'll win, is a new factor. It's seriously throwing our legal system out of wack, and needs to be addressed. But not one industry at a time, we need an overall solution.

Posted by: Brett Bellmore at March 12, 2004 04:50 AM | PERMALINK

I personally think the appropriate solution would be a constitutional amendment, declaring that nobody can be held civilly liable for the consequences of somebody else's actions. Essentially declaring that civil liability stops with the proximate actor. That would stop in it's tracks the current effort to divorce tort liability from fault.

Posted by: Brett Bellmore at March 12, 2004 06:25 AM | PERMALINK

Sebastian,

I don't think too many people disagree with you on the notion that personal responsibility should take a central role in the world of torts. But, of course, the possibility of lawsuits might be encouraging practices that encourage personal responsibility for health, like the accurate publication of nutritional information. Like you and others, I'm opposed to immunizing an industry for a variety of reasons. If you wanted to convince me this was a good idea, you'd need to include some sort of "code of conduct" regulations about nutritional information (again, as far as I know most fast food restaurants are pretty good about this, but I wouldn't take for granted that would last). It seems to me that providing accurate information facilitates rather than obviates personal responsibility.

I still think I'd oppose this, though. Earlier, you say these lawsuits are "annoyingly recurring." This is imprecise, of course, but true in the sense that it is annoying to see these lawsuits treated like serious news stories when they take place. But a couple of questions:

1) How many of these lawsuits have been filed?

2) Have any of them made it past an early motion to dismiss?

I have no idea what the answer is to these questions, nor how to find out. But I suspect the answer is 1) very, very few, and 2) much fewer, possibly none. If my speculation is correct, that raises a third question:

3) Is it really a good idea for congress to be legislating for a scenario that never happens, but might happen someday if a bunch of really stupid people get together and act stupidly in concert?

Lots of important legislation never sees the floor. I'd rather see Congress debating serious law rather than posturing and/or planning for possible rare unlikely contingencies.

Posted by: DJW at March 12, 2004 08:04 AM | PERMALINK

Perhaps considering an analogous question would help. Is it "right" for the Southern Poverty Law Center to use lawsuits to combat neo-Nazis, KKK, etc.?

Some think it is, others think it is not.

Of course neo-Nazis are violent thugs, whereas food suppliers are merely guilty of selling inferior and perhaps "defective" nutritional products. But there is a similarity in that in both cases civil lawsuits are employed as a means of coercion. The SPLC wishes to coerce hate groups into non-existence, and people who sue McDonalds are perhaps trying to coerce McDonalds into improving the quality of its nutritional products, or at least to be open about their shoddiness.

Posted by: Barry Schwartz at March 12, 2004 09:15 AM | PERMALINK

I frequently find myself in conversations with people concerning issues like these. The one thing that appears very objectionable is that no one seems to have any data whatsoever on how many frivoulous lawsuits occur in a given year. This law has a chance of passing, but how many lawsuits were filed against McDonald's or other fast food concerns? What problem is this law addressing?

I believe that the McDonald's case is probably frivolous, in the sense that an adult should take some responsibility for there actions. However, a great many people arguing on behalf of McDonald's also seem to be arguing on behalf of Big Tobacco. These cases seem to be very different. As a poster pointed out above, there is no reason to point to fast food as a cause for obesity alone. It is fairly clear that cigarettes do kill.

My point is, I think, that the some people who support this law are not supporting it on the basis of its merits, which may be real. They are supporting it because they oppose product liability lawsuits in general and see this as a way of making some inroads.

Posted by: Roland at March 12, 2004 09:23 AM | PERMALINK

There's nothing "shoddy" about McDonald's food. It tastes fine, contains no foreign matter, and isn't at all toxic. Is cheesecake "shoddy"? "Inferior"? You wouldn't want to try to live off it!

McDonalds is ok as an occasional indulgence, and if you were earning your living digging ditches with a shovel you could eat there three meals a day without any trouble. It's just that you can't regularly eat high calorie, high fat food, if you're not very physically active.

That's the great, unpopular secret of dieting: You can eat practically anything, so long as you work your butt off.

Posted by: Brett Bellmore at March 12, 2004 09:37 AM | PERMALINK

"As a poster pointed out above, there is no reason to point to fast food as a cause for obesity alone. It is fairly clear that cigarettes do kill."

Yeah, so fairly obvious, that they couldn't win a lawsuit against the tobacco companies until they passed laws making it illegal for them to point it out in court. The point is that they were both voluntary choices with known risks. If you voluntarilly assume a risk, and things turn out badly, it's YOUR fault. The legal system which denies that will inevitably decend into madness.

Posted by: Brett Bellmore at March 12, 2004 09:41 AM | PERMALINK

Brett —

* IIRC, the tobacco companies started losing lawsuits when it was revealed, via their own documents, that they'd concealed evidence that cigarettes are toxic in normal use and lied about that fact in numerous previous investigations. Of course, I could be recalling incorrectly. I'll check the Cato site later, when I'm not quite as rushed.

* Re "work your butt off" — how many jobs involve physical activity more strenuous than adding paper to the copy machine? Working your butt off at a computer 14 hours a day won't burn many calories.

* As others have pointed out upthread, food options are often extremely limited in poorer neighborhoods. Mickey D's and its franchise brethren can be the only options that don't involve a trek to another part of town. Plus, fast-food meals aren't just easier but often cheaper than cooking for yourself and the family.

* In many families, knowledge of good nutrition is pretty much nil. In NYC, there are sporadic attempts to teach nutrition in schools but they're pretty ineffectual. Can you think of ways to deal with this problem? Not being snarky; I'm genuinely curious. I know of one approach that works well but it will never, ever be implemented here. In the epicenter of sneering treason that is France, eating and cooking are part of the national curriculum starting in pre-K. Kids learn how to shop for good food, how to taste it, how to prepare it, how to balance meals and total daily intake. It's considered an aspect of cultural literacy.

I'm not saying the solution to rampant American obesity is to sue the collective pants off the fast-food industry (though I do object to blanket exemption of any industry). But the problem is considerably more complex than you're acknowledging.

Posted by: dix at March 12, 2004 10:24 AM | PERMALINK

Brett Bellmore

You talk of legal systems descending into madness. Do you have any evidence which addresses this point? For example, some analysis of the problem based on actual lawsuits, how many were thrown out, etc. would be plenty.

The lack of anyone citing actual relevant data makes me suspect that the data proving that this sort of thing is a problem simply does not exist.

I think dix addressed the tobacco problem more clearly than I did. In the case of McDonald's, there is no reason to think they have concealed this sort of information from the consumer. There is plenty of evidence pointing to Big Tobacco doing just this.

Posted by: Roland at March 12, 2004 11:14 AM | PERMALINK

Kevin, got a Big Mac?

Posted by: Ronald at March 12, 2004 02:39 PM | PERMALINK


It's both a good idea and pandering to the fast-food industry.

It's a good idea, since there is much to be said for personal responsibility. Also, it can be plausibly argued that most Americans believe that fast food companies should not be sued for making people fat unless they do so through subterfuge. (One example would be if Krustyburger's food scientists found a way to incorporate lard into salads yet labelled the Krustysalad lowfat.)

It's pandering, because the courts decide what the courts may rule on, and two such lawsuits have been denied without hearing, which makes the law both toothless and unnecessary.

Posted by: Yamaneko at March 12, 2004 09:05 PM | PERMALINK

It will get worse. The comments about these cases being thrown out of court are EXACTLY the same as what was said about the early tobacco case. I expect that pretty soon fat people will sue See's Candy and Crispy Creme Donuts. My guess is that chocolate candy and donuts have made as many people people fat as Big Macs have. My ex-wife balooned out to 270 pounds and never ate at a fast food restaurant. The grocery store provided everything she needed to weigh more than a lot of professional football players.

Posted by: Roger at March 14, 2004 01:01 PM | PERMALINK

Quick question for lawyers on the board...

What downside is there for a plaintiff/plaintiff's
counsel to bring a frivolous suit which has
a small chance at a huge payout?
(Other than their own out-of-pocket expenses).

Are they required to pay the defendant's legal fees?

Do lawyers ever get disbarred for bringing a frivolous suit? If so, how often does it happen?

Can they be sued by McDonald's shareholders for making false claims?

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