Results matching “obesity litigation”

Food lawsuits - PointOfLaw Forum

A New York Times story seems drafted from a press release as it implies that billionaire tobacco lawyers are successfully targeting the food industry. While it's true that food manufacturers have been buffeted with dozens of class actions over labeling, plaintiffs' lawyers only successes have been nuisance class action settlements—and even many those have been only partial success. A $2M fee from a hit-and-run lawsuit against Kellogg over Frosted Mini-Wheats was thrown out for settlement irregularities; Center for Class Action Fairness attorneys knocked out over a third of a $1.3M fee in a similar harm-less lawsuit against Kelloggs over Rice Krispies. In the New Jersey edition of the widely derided Nutella class action settlement, CCAF attorneys succeeded in reducing a fee request from $3.7M to $1.1M. (The California judge rubber-stamped the same settlement.) This is profitable, but small potatoes to Big Food and to the billionaire Big Tobacco lawyers who, as Walter Olson points out, aren't really the ones involved in this litigation.

Of course, there's more than one way to skin a cat. If current law doesn't permit gigantic recoveries against food companies, create a law that will. Prop 37 in California is being sold as a disclosure law, but the real purpose is, of course, as Walter OIson argues, to create a new cause of action transferring wealth to the plaintiffs' bar. As a WLF analysis shows, the definition of "natural" is so narrow in the proposition—excluding such things as sliced apples, because apples aren't naturally sliced—that consumers will receive no useful information. As such, it is a repeat of the infamous Prop 65, which led every California establishment to warn of cancer-causing agents regardless of actual level of risk. When everyone discloses a Prop 65 warning, no one is actually warned of anything, because one cannot distinguish between a parking garage and a uranium mine with an asbestos-fiber-spewing machine.

A Corporate Counsel article heavily quoting defense attorney Kristen Polovoy shows a distinct lack of outrage; after all, such lawsuits, she says, suggest that food companies should hire more attorneys to review their marketing materials. That such nonsense is a pure social deadweight loss never enters the equation.

If there is a silver lining in all of this, it is no longer the case, as it was when I wrote about these lawsuits in 2006, that the plaintiffs' bar is selling the litigation as a public-policy measure against obesity. Nor can they: the ludicrous injunctive relief in the Nutella settlement changes the sugary spread's tagline from "An example of a tasty yet balanced breakfast" to "Turn a balanced breakfast into a tasty one." Settlements like that demonstrate the degree to which these lawsuits are simply rent-seeking vehicles.

Speaking in Chicago Monday and Tuesday - PointOfLaw Forum

I'm giving talks on obesity litigation at Northwestern Law and University of Chicago Law Monday and Tuesday (with likely ironic food being served for lunch) courtesy of those schools' respective Federalist Society chapters. Still waiting to hear about the format. Come say hi.

New push for federal food safety regulation - PointOfLaw Forum

I write at Overlawyered about the (only too plausible) worries that it will make life untenable for many farmers and other small food producers.

Meanwhile, at the Wall Street Journal (via Genova), Nathan Koppel looks at the current state of nutritional/obesity litigation against food makers. Groups like the Center for Science in the Public Interest, having run into much resistance from judges to their schemes for obesity damage awards, court-ordered ingredient substitutions and the like, seems to have beaten a tactical retreat to the position that they're really just trying to achieve more disclosure.

By Stephen M. Bainbridge

This piece was originally published in the Washington Examiner, 7-31-2007. Reprinted with permission.

Washington, D.C. — Let's assume, for the sake of argument, that the climate change phenomenon commonly called "global warming" exists and is being caused, at least in part, by human activity. Who is responsible? The only sensible answer is, everybody. We all contribute to the release of greenhouse gases, as did our ancestors going back at least to the beginning of the Industrial Revolution.

One would therefore think litigation is no more an appropriate response to global warming than litigation would be to any so-called "act of god." One would be wrong.

Earlier this year, Texas trial lawyer Stephen Susman told the Dallas Morning News that "You're going to see some really serious exposure on the part of companies that are emitting CO2." He added, for good measure, that "I can't say for sure it's going to be as big as the tobacco settlements, but then again it may even be bigger."

Indeed, trial lawyers are gearing up to turn global warming into their next pot of gold. A coalition of environmental groups and cities are suing the Overseas Private Investment Corporation and the Export-Import Bank of the United States for making loans to finance oil pipelines, oil drilling, and similar projects that supposedly result in a net emission of billions of tons of carbon dioxide. After Hurricane Katrina, New Orleans trial lawyers Gerald Mapes and Timothy Porter sued dozens of energy companies, claiming they had contributed to global warming.

Last year, Business Week reported that there were 16 pending global warming cases of these sorts pending around the country. More are surely in the pipeline, so to speak.

Indeed, the prospect of a boom in global warming litigation is prompting law firms to begin setting up units specializing in climate change issues. According to the Dallas Morning News, for example, Dallas law firms Vinson & Elkins and Thompson & Knight have set up global warming units with 41 and 26 lawyers, respectively.

If it weren't for the precedents set by tobacco, alcohol, and obesity lawsuits, one might be tempted to dismiss climate change litigation out of hand. After all, the law typically requires a showing of causation. Before you can hold me liable, you must show that but for my conduct you would not have been injured. Typically, you also must show that my conduct was the proximate cause of your injury.

How can one firm—or even one industry—be blamed for a global phenomenon that took decades to arise? Making causality findings and apportioning responsibility in this context is ludicrous. Yet, what might a New Orleans jury still smarting over Katrina do if they got the chance to decide Mapes and Porter's suit?

This is a classic example of why tort reform is a pressing need. The Institute for Legal Reform offers some chilling statistics: "America's civil justice system is the world's most expensive, with a direct cost in 2005 of $261 billion, or 2.09 percent of GDP.

"Tort costs were $880 per U.S. citizen in 2005, meaning the average American family of four paid a 'litigation tax' of more than $3,500 due to increased costs from lawsuits and other liability expenses that force businesses to raise the price of products and services. That cost is equivalent to nearly an 8 percent tax on wages."

These costs are having a dramatic impact on the US economy. A nonpartisan report prepared for New York Senator Charles Schumer and New York City Mayor Michael Bloomberg, found that the "propensity toward litigation" in the United States is "driving growing international concerns about participating in US financial markets."

Along with regulatory excesses like the Sarbanes-Oxley Act, the litigation industry in this country is making our capital markets and our economy as a whole less competitive.

It's time for Congress and the president to step up with legislation that take the question of global warming out of the arena of ad hoc judicial decision making and put it into the hands of our elected officials. Both fairness and efficiency demand it.

UCLA Law Professor Stephen Bainbridge is a member of The Examiner's Blog Board of Contributors and blogs at

FDA scandal! Or is it? - PointOfLaw Forum

A front-page story in yesterday's Wall Street Journal by Jane Zhang (via Stier) expresses one-sided dismay that HHS blocked an FDA safety effort on E. coli contamination in produce.

"Among other things, the FDA outlined a three-year effort that would pump $76 million into its coffers to monitor produce safety and impose stringent rules on growers and processors to prevent contamination. Such a campaign could cut produce-related outbreaks of illness in half, the FDA officials said."

There are 356 cases of produce-borne E. coli a year. Regulators wanted to spend $76 million to prevent a little over 500 cases of E. coli? Maybe taxpayers would prefer to have one less case of E. coli nationwide instead of $140,000, but it doesn't seem so self-evident that the argument should be ignored entirely, as the story does.

Simple-minded folk on the left sometimes pooh-pooh this sort of cost-benefit analysis as "safety is too expensive," an appallingly arrogant pronouncement of proud ignorance. How much should we spend to eradicate E. coli? Why stop at $76 million to just reduce the small number of cases by half? Why not spend the entire nation's GNP to completely eradicate E. coli contamination of produce?

The answer is obvious to the intellectually honest: if we as a society spend that much money on one small problem, larger problems will necessarily go unaddressed, and we are all worse off. Resources are scarce, rather than unlimited, and not every problem can be solved.

The Wall Street Journal story doesn't even mention how expensive the costs would be to produce-growers beyond the taxpayer layout of expenditures. Would the increased price to fruits and vegetables cause poor people to switch to less healthy carbohydrates and fats in their diet, and increase obesity and health risks that more than offset any small gains from reduced E. coli contamination? I don't know—but it's a question that should be at least asked.

The interesting quote is this one: "Major players in the fresh-produce industry, hurt by sinking sales after the recent outbreaks, support mandatory steps to prevent accidental contamination."

Unmentioned is that this is an interesting case of a collective-action problem exacerbated by government regulation. No one wants to be the first mover, only to learn that the government is going to require a completely different safety scheme that will require a second set of expenditures. If there wasn't the risk of government action, the market would have found the right level of safety that satisfied consumer demands at a price consumers were willing to pay for that safety.

National Law Journal on obesity litigation - PointOfLaw Forum

Attorney Lianne Pinchuk asks "Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?" Note the last paragraph:

Despite the lack of success of obesity-related personal injury cases thus far, it is important to remember that when allegations were first made against tobacco companies, the possibility of large verdicts seemed remote. It was only once the litigation reached the discovery phase and negative internal documents were revealed that large plaintiffs' verdicts became possible. The Big Food cases to date have generally not led to discovery, and only Big Food itself knows what damning documents may exist. If they do exist and are discovered by plaintiffs lawyers, they may provide ammunition for more suits and increasing verdicts. Right now, however, fast food companies are enjoying more protections than tobacco companies ever did, and it appears that Big Food is not the next Big Tobacco.

AEI's Phil Wallach perceptively writes us "Is it really plausible to imagine that plaintiffs� lawyers won�t find SOMETHING that they will call a smoking gun once given the access to the documents? If only the author had [written] 'seemingly' before 'damning,' I would feel a whole lot better about her thesis."

My take on obesity litigation is available at SSRN. Further discussion of this article by Jonathan Adler @ Volokh.

(Congratulate Phil: he just got into Yale and Harvard for grad school. Which means I'll need a new assistant in a few months. Did you know that the Institute has been featured as one of Washingtonian magazine's fifty-five great places to work?)

McCool v. Merck dismissed - PointOfLaw Forum

On February 26, 2007, Angela McCool's trial against Merck was scheduled to start in plaintiff-friendly Philadelphia state court. (McCool had used fraudulent joinder to keep the case in state court by also suing some Merck employees who lived in Pennsylvania.) McCool had blamed the fatal heart attack of her husband (who had hypertension, high cholesterol and obesity) on Vioxx, but apparently thought better of bringing the case, which was voluntarily dismissed with prejudice.

Task for a creative investigative reporter: I really wonder whether the Plaintiffs' Steering Committee (or individual trial lawyers with large inventories of Vioxx cases) are buying off plaintiffs with weak cases so that Merck doesn't have a pile of victories in the early going, something that has effectively shut down other pharmaceutical mass tort litigation that settled for nuisance sums. What possible reason could a plaintiff have to agree to a lawyer's request to settle for zero when there's a better-than-lottery-ticket chance at fame and fortune before a jury? There seem to be a surprising number of voluntary dismissals with prejudice, and there has yet to be a Vioxx plaintiffs' victory of any significance that isn't severely tainted with reversible error on fundamental matters such as expert evidence.

Merck victory in Alabama Albright case - PointOfLaw Forum

Gary Albright had multiple risk factors for a heart attack including a 30-year history of hypertension, diabetes, obesity and untreated high cholesterol. An Alabama state-court jury took 90 minutes to decide Vioxx wasn't the cause of his 2001 heart attack. Merck pled a statute of limitations defense, but AP press coverage is unclear how that played out. (h/t) The Merck press release appears to be misdated, since the verdict came today. That's nine out of thirteen jury verdicts for Merck (with one such victory overturned by Judge Higbee).

John Stossel on obesity litigation - PointOfLaw Forum

"I have a question for federal Judge Robert Sweet: If your own children blamed McDonald's for making them fat, would you buy it? I don't think so."

Pelman v. McDonald's going forward - PointOfLaw Forum

The infamous class action litigation seeking to blame McDonald's for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, "N.Y. Judge Rebuffs McDonald's Motion to Dismiss Deceptive Ad Claims", New York Law Journal, Sep. 22). Judge Sweet's opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald's can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald's if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as "pure hype" because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It's a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Overlawyered.

"A Taxonomy of Obesity Litigation" - PointOfLaw Forum

A Little Rock friend of mine had an emergency gap in his law review, and solicited me to write about the fast-food litigation. I'm not a big fan of the eight-footnotes-a-page-style that law reviews like, but I think the piece is a good overview of what has happened to date. The article, 28 UALR L. Rev. 427 (2006), can be downloaded at SSRN (help me catch up with Bainbridge!) or at the AEI Liability Project website. (cross-posted at Overlawyered)

I worry that events have outstripped me; one sentence in the article, "Why is selling soda [to 17-year-olds] an attractive nuisance, but selling ... Internet connectivity is not?" predates the MySpace litigation.

Public Health's Credibility Crisis - PointOfLaw Columns

By Elizabeth M. Whelan, Sc.D., M.P.H.

(This piece appeared in the May/June 2006 issue of Skeptical Inquirer)

As society grapples with a possible avian influenza epidemic, threats of biological and chemical terrorism, AIDS, cigarette smoking, drug abuse, obesity, and more, it is vital that public health professionals present reliable scientific information and that the credibility of the public health profession be beyond reproach.

In recent years, however, a worrisome trend has emerged: many in the public health community appear to be promoting politics and ideology over sound science. The slippage of public health science into pseudoscience and agenda-driven initiatives has been going on for some time. The problem was addressed in a 1998 article by the Manhattan Institute's Heather Mac Donald. She noted that the field of public health "increasingly identifies itself by the most radical elements within it," noting that meetings of the American Public Health Association feature speakers like Jesse Jackson and promote caucuses on everything from socialism to lesbian/gay and bisexual rights. Mac Donald decries the drift of the public health community from programs based on sound epidemiological science (with a focus on preventing premature deaths from established causes like cigarette smoking) to the pursuit of agendas related to fighting poverty, racism, and sexual discrimination. She laments the flight of public health from sound science, noting that this evolution "squanders the great legacy of public health."

Last year, the credibility of the public health profession came even more sharply under scrutiny—and Mac Donald's predictions about the erosion of public health as a respected and legitimate profession seem more on target than ever before.

Specifically, two major public health institutions selected for their highest awards individuals whose focus in public health was not traditional preventive medicine interventions (for example, promoting immunizations, smoking cessation, disease screening, etc.). Instead, the award recipients' practice of "public health" focused on litigation against corporations. The message emerging from these awards is this: lawsuits against corporations, whether it means suing a soda company to hold it accountable for childhood obesity or litigating against a chemical company for allegedly causing cancer, are now accepted as standard public health practice—as important or more important than traditional public health educational and service programs based on epidemiological findings about the causes of human disease.

The first of these two awards, the Sedgwick Memorial Medal, described by the American Public Health Association as its "oldest and most prestigious award," was given to Dr. Barry Levy in December 2005. The APHA reserves this award for "an individual who has demonstrated a remarkable record of service while working to further public health practice and knowledge." What remarkable public health achievements by Dr. Levy singled him out for this award? Did he promote water fluoridation? Establish smoking cessation clinics? Advocate more widespread influenza vaccinations? Increase the use of lifesaving seatbelts and bike helmets? Encourage people to eat less and exercise more?

No, not exactly. Dr. Levy may be best known as being one of nine physicians who are at the center of a growing scandal over silicosis and asbestos diagnoses in the course of litigation against corporations. At one point, it was revealed that he produced over 1,200 "diagnostic evaluations" in 72 hours, that being a rate of about one diagnosis every four minutes. The clinical criteria for diagnosing silicosis, among other factors, requires: evidence of significant exposure to the substance over a substantial number of years, radiographic evidence of disease, and confirmation of the absence of any other causes of the condition. These criteria were not met by the physicians making the silicosis diagnoses. Specifically, Dr. Levy was accused by Judge Janis Graham Jack, in the course of his role in Texas silicosis litigation of having "an agenda: diagnose silicosis and nothing else." The judge wrote that Dr. Levy "saw his role with respect to these cases as beginning and ending with litigation." Judge Jack ultimately blasted the diagnosing physicians, including Dr. Levy, asserting that their "diagnoses were driven by neither health nor justice: they were manufactured for money."

As summarized in a Wall Street Journal editorial, "The problem is that over the years, as Judge Jack's opinion shows, litigation has turned into a lucrative industry and some doctors have compromised their professional ethics in the process. This has profound the area of 'public health' for which Dr. Levy is being honored. As Judge Jack noted, sham diagnoses have huge consequences for the unfortunate individuals who are pulled into these suits. The vast majority are in fact healthy but are saddled with 'diseases' that drive up premiums on their health and life insurance...they must deal with the wrenching emotional toll of being told (falsely) that they have a serious illness."

The bottom line is that Dr. Levy's participation in what the Judge deemed to be sham diagnoses to support litigation did nothing to improve the state of public health. But APHA still felt he was worthy of the organization's highest award.

Erin Brockovich's Prize for Fighting

At least Levy has been an adjunct professor at Tufts and worked at the Centers for Disease Control, though. The second award that raised questions about public heath credibility was more ridiculous.

The Harvard School of Public Health bestowed its 2005 Julius Richmond Award, the school's highest honor, upon environmental activist Erin Brockovich. Since HSPH notes that the Award "seeks to pay tribute to individuals who—like Dr. Richmond—have promoted and achieved high standards for public health," we must ask, as we did with Dr. Levy, what Brockovich accomplished in the field of public health and disease prevention to merit this prestigious award. (The award is named after the Surgeon General in the Carter administration.)

During the 1990s, Erin Brockovich worked as a file clerk for a California law firm. She ascertained that a Pacific Gas and Electric plant in Hinkley, California was leaching trace levels of chromium 6, a rust inhibitor, into Hinkley's water supply and speculated that this exposure might be making local residents sick. She gathered health records and, working with her legal colleagues, identified some 600 prospective plaintiffs to sue PG&E, claiming exposure to chromium 6 caused a spectrum of diseases ranging from nosebleeds to breast cancer, Hodgkin's disease, miscarriages, and spinal deterioration. In 1996, PG&E settled the case for $333 million, ostensibly to compensate "victims" (the story was later portrayed in a motion picture starring Julia Roberts).

There was never any evidence to support Ms. Brockovich's claim that traces of chromium 6 made people sick. The Environmental Protection Agency does consider chromium 6 a human carcinogen, but it's linked to lung cancer only when it is inhaled (not ingested) in high doses, over many years in occupational settings. A 2001 report by the California Department of Health Services, addressing the cancer claim of plaintiffs' lawyers, concluded: "We found no basis in either the epidemiological or animal data published in the literature for concluding that orally ingested chromium 6 is a carcinogen." For what was tantamount to a corruption of science, the attorneys received $133 million in fees; Ms. Brockovich received over $2 million as a "consultant."

In other words, Erin Brockovich received Harvard's highest accolade for her success in what the HSPH announcement called one of "the largest direct action lawsuits of its kind...where [the] giant utility paid one of the largest toxic tort injury settlements in United States history." She was honored for successfully suing a corporation that allegedly harmed the health of Hinkley residents, even though there was never any evidence that the actions of the corporation caused any ill health whatsoever.

Given this, it is understandable Harvard received considerable criticism for choosing Brockovich as the awardee. While qualified, science-oriented public health professionals were saving lives and preventing premature illness—through educational programs on the dangers of smoking, the benefits of lifesaving technologies like seat-belts and bike helmets, the importance of early detection of disease, and more—an individual who never did anything to save lives and protect public health was feted as a public health heroine.

When called upon to justify the award, the dean of HSPH, Dr. Barry Bloom, maintained that Brockovich was being honored for work "on behalf of all of us...especially the residents of Hinkley, CA whose health was adversely affected by toxic substances." When challenged by critics of the award and reminded that there was no evidence at all that the health of residents was "adversely affected" by "toxic substances," Bloom defended his action, noting, "[T]here are always areas of causal uncertainty...but also an urgency to prevent harm and protect the health of people." In referring to "areas of causal uncertainty," Dr. Bloom apparently meant "no causal link was found, but only suspected." If one is to interpret this explanation literally, it appears that Dr. Bloom was arguing that even if there is no evidence of a health threat, it is important to assume there is one—just in case—and take punitive action against those charged with "causing" the harm.

But such a definition of causality violates the basic scientific (and epidemiological) requirement that before one can identify cause and effect, one must identify a cause. Eschewing scientific rationale, Bloom apparently believes that mere allegation suffices to assign causation and condemnation—bringing us back to burning "witches." This hardly seems like the type of educational message one would expect to be communicated at an institution of higher learning in the field of public health

Thousands of public health professionals are at this moment saving lives and preventing premature disease following sound scientific protocols, yet the American Public Health Association and Harvard singled out individuals who instead pursued self-serving financial opportunities through litigation. These awards have stirred controversy (a commentary on the Brockovich incident in Science magazine was titled "Toxic Award?") among scientists who fear the negative impact on public health credibility. And well they should. The APHA and Harvard awards to those whose public heath "specialty" was litigation were egregious examples of poor judgment and, just as Heather Mac Donald wrote, an example of the public health field being dominated "by the most radical elements within it." The question is whether this poor judgment was a fluke or part of an ominous trend. It is time for all public health professionals to reflect upon exactly what should be the basis of our activities: lifesaving interventions based on sound, peer-reviewed science—or political activism and agenda-driven activities that do nothing to prevent premature disease and death.

Dr. Elizabeth M. Whelan is president of the American Council on Science and Health (,

Elaine Doherty v. Merck - PointOfLaw Forum

This Atlantic City case has gotten somewhat less trial coverage than previous Vioxx trials. According to Merck, "Mrs. Doherty had multiple risk factors for heart disease, including age, high cholesterol, diabetes, high blood pressure, obesity, a sedentary lifestyle and a family history of heart attack. Testing further demonstrated that she had severe triple-vessel and left-main coronary artery disease." The VIGOR study was on the warning label for most of the time Doherty took Vioxx, though, to date, jurors and judges haven't seemed to care about that fact.

Heather Won Tesoriero provides some background on the opening statements in a WSJ Law Blog post.

A commenter asks: I have always wondered why Merck doesn�t hammer home the point that virtually every senior member of the management team and their families used Vioxx themselves. Hardly what would have been the case if it was a vast profit making plot. Has this point of evidence been blocked ?

The answer: Yes. Plaintiffs' lawyers have successfully moved to keep this evidence from the jury.

Taking Cola to Court - PointOfLaw Columns

By Walter K. Olson

(Reprinted from City Journal, Winter 2006)

Get ready for the next mass-tort crusade: protecting our kids from the ravages of Big Cola. According to news reports, a group of lawyers is gearing up to file lawsuits that will seek to blame Coke, Pepsi, & Co. for obesity, tooth decay, and other childhood health ailments. An article in the Boston Globe magazine has already hailed what it calls a "national legal movement to make soft drinks the next tobacco." Instead of tar and nicotine, we'll be hearing about corn sweeteners and caffeine; maybe Dr. Pepper can stand in as the new Joe Camel.

Ridiculous? More like inevitable. For some time, a noisy campaign has been under way to portray the food and beverage industry as the villain in America's ongoing battle with the waistline. Without the snack hucksters' machinations, it seems, we'd all eat raw bell peppers and be reed-thin. Backed by "progressive" foundations, nutrition advocates in and outside the universities now regularly appear in the press, demanding a national obesity policy aimed at changing our collective diet, by force of law if necessary�or quite possibly by force of litigation. As one advocate, Michael Jacobson of the Center for Science in the Public Interest, put it: "If someone is saying that a 64-ounce soda at 7-Eleven contributed to obesity, that person should have his day in court."

That brings us to Northeastern University law prof Richard Daynard, point man in the forthcoming courtroom onslaught against fizzy drinks. Long quoted in the press as a cheerleader for tobacco lawsuits, Daynard has now set out to assemble a legal strike force to file actions blaming big business for obesity. He wants to duplicate the success of the tobacco campaign, whose strategies included invoking "the children" at every turn, portraying smokers as passive addicts, and�on a more practical level�launching scores of suits on novel legal theories in hopes that one would stick. The litigation culminated in the giant 1998 settlement that saw cigarette makers agree to alter marketing practices, pay oodles to state governments (financed by hiking cigarette prices), and�not incidentally�fork over upward of $10 billion to the lawyers who'd organized the suits.

The first of the new soft-drink suits�set for filing in Massachusetts over the sale of soda in school vending machines�has been delayed, for a comical reason. Daynard says that it's taken longer than expected to line up the right Bay State family to serve as client, even though his group has placed newspaper ads asking parents to step forward. (Shouldn�t he be pretending, at least, that aggrieved victims of Big Cola are pounding on his door, eager to sue?) But such difficulties are temporary: at some point, the plump plaintiff will be safely on board, and it'll be off to court.

So should we laugh at these lawsuits? Take them seriously? The case for laughing is clear enough. After all, Round One of this kind of litigation�the suits by obese customers against McDonald�s and other burger chains�drew derision from the general public, an overwhelming 89 percent of whom in one poll opposed letting people sue over fattening foodstuffs.

This time around, though, the lawyers have selected targets more shrewdly. Unlike many other ideas floated by nutrition activists, that of restricting soda sales in schools has proven popular with the general public, and politicians have taken notice. Most big-city school systems have banned soda, as has California in public schools statewide, and other states are likely to follow�all without anyone needing to sue. You might even suspect that the lawyers are positioning themselves to "front-run" a social trend already in progress and then later take credit (and claim fees) when it advances further.

The bans might not make much difference in the problem of childhood obesity, it's worth noting. Most soda (99 percent) sells outside schools. Fruit juice (a typical replacement) is itself anything but slenderizing, moreover, especially compared with the diet soft drinks popular among teens.

Still, the lawyers might well coax a settlement out of the soft-drink firms, the terms of which wouldn't necessarily depend on the strength of the actual legal case. The real leverage that this kind of litigation affords, after all, often lies in the threat of obtaining, under court order, reams of internal documents from the opponents' files. The next step is for the lawyers to pluck selected bits out of context and feed them to a cooperative press, which then casts them in the worst possible light. It happens that two huge companies dominate the soft-drink industry, both extremely sensitive about their reputations, which are vulnerable to damage, both at home and abroad, should articles begin appearing regularly in the U.S. media vilifying their marketing practices.

Nor would Coke and Pepsi necessarily be averse to granting some of their critics' demands. In fact, a settlement that let the two cola giants reduce the vast sums they spend on marketing and promoting might be in their mutual interest, conferring a collusive benefit otherwise unobtainable without violating antitrust laws. Some economists believe that the various curbs that the tobacco settlement placed on cigarette ads have actually boosted tobacco firms' profitability.

So maybe there'll be some money for Daynard after all. And it'll be hard for him to pretend, this time around, that he isn't interested in it. Back in the heyday of tobacco litigation, hundreds of news reports portrayed Daynard as an academic well-wisher of the suits, breathing not a word about his monetary stake in them. After Richard Scruggs, Ronald Motley, and other tort kingpins brokered the $246 billion settlement with the states, however, Daynard popped up to claim that he had an oral agreement with the lawyers that entitled him to 5 percent of their fee haul�a claim that, if accepted, would have brought him a cool $150 million or more. No such luck: Scruggs and Motley said they�d made no promise of the sort. The dispute, later settled on private terms, got rather heated. Scruggs deemed Daynard "a bit more mercenary than people think he is," while Motley described as "stupefying" his claim to have masterminded the litigation.

Some reporters felt betrayed at learning after the fact of the professor's undisclosed role as a bettor in the litigation horse race he was handicapping. But it didn't seem to bother the higher-ups at Northeastern, who gave the university's imprimatur when Daynard launched his more recent obesity-suit venture. In fact, a second Boston-area university, Tufts, has also sponsored his litigation-promoting Public Health Advocacy Institute.

Who needs Coke and Pepsi to bring commercialism to the schools, anyway? It looks as if Daynard is doing a decent job of that all by himself.

Associated Press on obesity litigation - PointOfLaw Forum

This survey of the obesity/Big Food controversy by AP writer J. M. Hirsch doesn't slant the analysis in favor of the litigators and business-bashers, which makes it a refreshing change from a lot of AP coverage.

Cheeseburger Bill Passes House, Again - PointOfLaw Forum

The Cheeseburger bill, more properly known as the Personal Responsibility in Food Consumption Act of 2005, passed the U.S. House by a bipartisan majority of 306-120.

As James Copland noted yesterday, this bill is an industry-specific reaction to a series of lawsuits brought by plaintiffs' lawyers seeking to regulate an industry through litigation.

The food industry, much like the gun industry, has been a target of "regulation through litigation" in recent years, as witnessed by the California AG's recent lawsuit over the labeling of french fries.

(Obesity litigation background).

Ohio enacts wide-ranging liability reforms - PointOfLaw Forum

Following strenuous battles, the Ohio legislature this month enacted and sent to Gov. Robert Taft (who plans to sign it) a watered-down but still significant package of liability limits. The legislation:

* Limits noneconomic damages to $350,000 per person and $500,000 per incident except in cases of catastrophic injury;

* Expands the current definition of frivolous lawsuits;

* Curtails punitive damages;

* Enacts a ten-year time limit for many product liability claims, chemicals and drugs excluded, as well as a government standards defense;

* Enacts a seat-belt defense in car-crash cases;

* Protects some companies from successor liability over asbestos products once sold by companies they bought;

* Restricts obesity litigation against restaurants and foodmakers;

(Cincinnati Enquirer (+ editorial); Toledo Blade; legislative guide from Bricker & Eckler law firm).

Earlier (see Aug. 20), Ohio enacted first-in-the-nation legislation requiring asbestos claimants to meet specified medical criteria to qualify for compensation. Although the Ohio Supreme Court in much-criticized opinions threw out two earlier sets of liability reforms, voters have since shifted the balance on the court and the present line-up of judges is thought more likely to uphold the law.

P.S. A Dec. 14 Toledo Blade editorial states: "One glaring shortcoming is that the measure fails to include a British-style 'loser pays' provision, which would dramatically discourage frivolous lawsuits."

Olson on obesity - PointOfLaw Forum

For those who've been following my postings on the CDC's retraction of its flawed obesity study (see Nov. 30, Nov. 24), our editor has an extensive posting today on overlawyered. Included is a summary of prospects for "obesity" lawsuits in the near- and medium-term:

Finally, the Fulton County Daily Report, the Atlanta outpost of the empire, this summer published a useful discussion of the prospects for obesity litigation ("Trying Fat Suits On for Size", Aug. 3). The chief threat to food companies in the nearer term, as attorney W. Michael Holm (Womble Carlyle) notes, will come from private suits alleging false marketing or product adulteration -- theories which as it happens are often left untouched by state "cheeseburger bills" prohibiting a cause of action over sale of fattening food as such. Nor will the cheeseburger bills necessarily prevent plaintiff's lawyers from laying their hands on internal documents and publicizing them in the worst possible light, posing a significant reputational threat at least to their targets.

Causation issues -- which food or other unhealthy influence caused which disease in which persons? -- would pose a "huge" hurdle to private class actions as well as individual suits, observes Scott A. Farrow, of Troutman Sanders. On the other hand, Holm discerns a "significant threat out there for the food industry" from the potential for state attorneys general eventually to get together and sue on a disgorgement or unjust enrichment theory, which might also (a la tobacco) include a claim to recoup Medicaid and other public health expenditures. And Polly J. Price, a professor at Emory University School of Law, notes that restaurant chains' widespread fear of getting sued if they furnish consumers with inaccurate nutritional information has the presumably unintended consequence of discouraging them from releasing nutritional data at all, since many such chains "can't control every meal that goes out of the kitchen" and thus can't undertake to warrant the exact number of calories, carbs or fat grams that a worker on the spot will incorporate into a sandwich or salad.

Check out the entire posting here.

Not quite beach reading but still good... - PointOfLaw Forum

The Washington Legal Foundation has a variety of interesting new articles on its website, including one analyzing the new California law granting the state 75 percent of punitive damages awards. The article (written by three of my Shook Hardy colleagues) addresses problems with so-called "split recovery" laws but ultimately concludes that given the two-year operational window, the California law is unlikely to affect many cases. The issue bears watching, though, because the enactment of a split recovery law in a trend-setting state like California may encourage other states to adopt similar laws. See Victor E. Schwartz, Mark A. Behrens & Cary Silverman, Legal Opinion Letter: New California Law Grants State 75% of Punitive Damage Award, Sept. 3.

Other articles well worth reading include Rep. Lamar Smith's piece on the federal Lawsuit Abuse Reduction Act, H.R. 4571, which seeks to combat rampant nationwide forum shopping and frivolous lawsuits by identifying appropriate forums for the filing of personal injury lawsuits and strengthening sanctions against attorneys who file frivolous claims in federal court, and Jones Day litigator Chuck Moellenberg's piece on the potential for the use of public nuisance standards against obesity lawsuit defendants, in light of their earlier use in regulation through litigation suits against other industries. See Congressman Lamar Smith, Legal Opinion Letter: Stopping Frivolous Litigation and Protecting Small Businesses, Sept. 3; Charles H. Moellenberg, Jr., Legal Backgrounder: Heavyweight Litigation: Will Public Nuisance Theories Tackle the Food Industry?, Sept. 3.

Cheeseburger bill passes House - PointOfLaw Forum

By a vote of 276 to 139 with most Democrats opposed, the House gave its approval to a bill that would bar lawsuits against the food industry over obesity. (Christopher Lee, "House bill bans suits blaming eateries for obesity", Washington Post/San Francisco Chronicle, Mar. 11). The bill faces an uncertain future in the Senate; similar legislation is pending in many state legislatures and has passed in Louisiana. Jacob Sullum at Reason "Hit & Run" has two good commentaries on the bill. It's "disconcerting to see Congress instructing state courts to dismiss patently absurd lawsuits. I worry that it's not really necessary. I worry more that it is," Sullum writes. (Mar. 9). Sullum also catches GW law prof John Banzhaf talking out of both sides of his mouth about whether obesity lawsuits have been successful (Mar. 10).

One activist quoted in the new coverage is Ben Kelley, who in cooperation with Prof. Richard Daynard has taken a prominent role in organizing conferences advising lawyers on how to sue the food industry (see Elizabeth Lee, Andrew Mollison, "Food fans weigh in", Atlanta Journal-Constitution, Mar. 10). It turns out that this is none other than the same Ben Kelley we covered ten years ago when we examined how litigation consultants working with trial lawyers have successfully promoted bogus media coverage of alleged auto hazards, including NBC's famous use of hidden incendiary devices to portray GM trucks as prone to explode (Walter Olson, "It Didn't Start With Dateline NBC", National Review, Jun. 21, 1993.) The pro-foodmaker Center for Consumer Freedom has more on Kelley's recent activities: see Dan Mindus, "McLawsuit Lies", National Review, Oct. 29; "Trial Lawyers Up Demands On Food Companies", Oct. 30; "Update: Obesity War Loses Discredited General", Nov. 4.

MedPundit Sydney Smith thinks (Mar. 10) that the much-headlined new study purporting to find that obesity claims more lives than smoking "is, all things considered, a very weak study. Certainly too weak to be the foundation of sweeping public policy." For more of our coverage of obesity litigation, see Aug. 11, Jun. 20, Sept. 4, Aug. 6, Jul. 21, Jul. 3, Jul. 3 again, Jul. 1, Jun. 24, and a great deal more here. More: Radley Balko dissents from the bill on federalist grounds (Mar. 11)(& letter to the editor, Mar. 18).

[cross-posted from Overlawyered, where it ran Mar. 11, 2004]