Sweet Justice

Today a federal judge threw out a lawsuit brought by fat New York teenagers who blame McDonald's for their portliness. If that sounds familiar, it's because U.S. District Judge Robert Sweet rejected a similar lawsuit by the same plaintiffs in January, ruling that "legal consequences should not attach to the consumption of hamburgers and other fast-food fare unless consumers are unaware of the dangers of eating such food." If the plaintiffs could show that there were hidden hazards lurking in McDonald's meals, Sweet suggested, they might have a case.

Instead of taking Sweet's advice, the plaintiffs' lawyer, Samuel Hirsch, based his amended complaint on allegedly deceptive McDonald's ads. But according to Sweet, he failed to explain how his clients had been harmed by the ads.

George Washington University law professor John Banzhaf, the obesity lawsuit enthusiast who bragged of advising Hirsch, now says "anti-fat lawyers aren't discouraged" because the dismissal was "expected." It "will not deter the filing of additional lawsuits," he insists. I believe him.

Comments

[Plutarck]

After all, it only takes one win. Just keep pulling that lever and maybe, one day, you'll get the jackpot you've been looking for.

The problem is, it seems like a strategy that could very well actually work, someday...

[also @ Hold the Mayo]

Before I think too much on the fact that they will probably be back to try again, I want to savor this Happy Meal of a victory for the concept of individual responsibility.

[chthus]

Now if some one could just gamble and win on a suit against the lawyers in ridiculous lawsuits for tying up the courts and wasting resources and just being a general scourge to society. Then again, that in itself might be deemed hypocritical. But I bet if you looked you could find more than one lawyer willing to give it a shot, after all, trial lawyers have some very deep pockets to pick.

[s'wonderful]

Help, I'm stupid! Can someone find a lawyer to help me sue network television? The damage they've obviously done to millions of Americans should be worth something.

[Skip Oliva]

The only way to stop these lawsuits once and for all is to destroy their means of abusing the legal system. This means judges need to impose the maximum sanctions allowable on lawyers that file these claims and that the state bars need to crack down on predatory lawyering, such as threatening to file a lawsuit without an actual client. It also means law schools like George Washington (my neighbor here in D.C.) need to stop their law professors from using their classrooms as a means of organizing these lawsuits.

[Lois Lane]

It's all about being responsible for your own choices. Stmack has an interesting take on this regarding tobacco at Hold the Mayo

[Russ]

One word: Costs.

Make the loser liable for the legal costs of the winner and the incentive to file frivolous suits will quickly vanish. Make the lottery cost more and fewer people will play.

[Insensitive Bastard]

I've got to agree with Russ. Simply paying for failed frivolous suits would discourage anyone from attempting to pull the lever.

By the way, if these plaintiffs were to win, would they then sue their lawyers when the get fatter from sitting on their ass all day since they no longer have to work for a living? After all, were the hazards of suddenly coming into large sums of money as a person with no will power or motivation for hard work fully explained by the lawyers? I rest my case!

[thoreau]

First a serious comment:

Russ-

As much as I sympathize with "loser pays", I wonder if there might be other solutions. Say there's a legitimately ambiguous lawsuit, e.g. some sort of medical malpractice case where the devil is in the details. If the plaintiff has shallow pockets and gets stuck with a fresh law school grad, and the doctor has somebody of Johnny Cochran's caliber, I think we both know the plaintiff has no chance.

Granted, if the malpractice were clear, even Cochran might lose. And if the malpractice claim was dubious, a "loser pays" policy would discourage it. But if the case is truly ambiguous, one of those things that could go either way depending on a careful examination of the details (i.e. the type of case that demonstrates the need for a good court system), when it goes to trial the plaintiff has a lot more at stake. He can't possibly pay Johnny Cochran's fees if he loses. The plaintiff is far less likely now to press ahead with a legitimate case that deserves a jury's attention.

I'm not sure what the answer is, but "loser pays" might not be the best reform. If I had to guess I'd suggest that legislatures start codifying personal responsibility in the statutes governing tort law.

Now for some sarcasm:

So, if we can't sue the people who sell us stuff when we make mistakes, does that, like, mean we'll have to be careful about our personal decisions. That's SO un-American!!! 😉

[Skip Oliva]

Loser pays is a great idea, but let's take the concept one step further: Require plaintiff's attorneys to post bond before filing class action or major tort claims. If the case can't survive summary judgment, the bond is forfeit.

[Anonymous]

Lois Lane - Thanks for the Hold the Mayo link. I like the idea of saying if you make the stupid decision, you pay the piper.

[thoreau]

Maybe we could have "loser pays double": Loser pays his own lawyer, and an equal amount of money to the winner (aside from whatever damages the court awards). So whatever the loser spent trying to make the winner's life miserable he has to hand over to the winner.

Skip Oliva's idea might be reasonable if the amount of the bond is based on the nature of the case, not the caliber of attorney that the defendant hires. Hmm, that might even be better than "loser pays double" since many plaintiffs' attorneys only charge a fee if their client wins.

[Kevin Carson]

To everyone who advocates "loser pays":

Do you really think a corporation with a staff high powered lawyers and deep pockets will be less vindictive than the IRS when it comes to fighting a scorched campaign against any adversary? As it stands, they will fight delaying actions at every step in the process, forcing the plaintiff to exhaust his resources, as a punitive warning to others. Loser pays will just add a new level of deterrence to tort action against corporate malfeasance, no matter how extreme. After all, there's a risk of losing even the most meritorious suit, and who is going to be more risk-averse--EvilGlobalCorp or a guy who makes $30,000 a year and stands to be totally ruined?

Here's a counterproposal--%1000 punitive damages for any corporation that files a SLAPP lawsuit and then loses.

[Minstral]

Lois and Anonymous -

That guy at Hold the Mayo is an idiot. How can anyone read that moronic spew without vomitting?

[Mr. Rob "Roy" Rogers]

I'm not against anti-smoking laws, because the smoke from your cigarette is affecting the health of other people -- people who did not make the decision to smoke.

But unless there's some invisible cloud of fat floating from every hamburger and clogging the arteries of unsuspecting passers-by, I don't see how stuffing yourself with fast food can be anything but an individual choise.

Sure, fast food is evil and bad for you. But nobody is forcing you to inhale it.

[Andrew Lynch]

Fast food is evil and bad for you? Since when? Sorry, Rob, I don't buy it. Sounds a little hysterical to me. Some of us have the good sense to know that if we binge on a couple of quarter pounders, we're going to have to walk an extra half mile, or up a few flights of stairs instead of using the elevator to make up for it.

[Madog]

You could always give the judge the option to decide if the loser pays the winners legal fees, or if they should be capped at a certain ammount.

[Richard Swan]

I have an idea. Let's sue the anti-fat lawyers. Since reading about these idiotic lawsuits by normal average citizens raises their blood pressure, it seems a natural. I mean, high blood pressure is a leading sign of heart disease. Their idiocy is hurting the average americans' health and they apparently feel no remorse. I smell a class action lawsuit. Any takers?

[Mr. Rob "Roy" Rogers]

Fast food is evil and bad for you? Since when?

Since always. Or perhaps you were under the impression that McDonald's served fresh apples, whole-grain bread, brown rice and broccoli, which are mighty good for you but not nearly as tasty as cheeseburgers and chocolate shakes.

Don't be so paranoid. Admitting a basic fact (fast food is unhealthy) is not the same as subscribing to the paternalistic reaction to that fact (ban it and sue the guys who make it).

Fast food is bad for you. It's fatty. It's unhealthy. It'll clog your heart with goo.
But in this society, you should be allowed to eat all the fatty, unhealthy, goo-inducing substances you want. And if your arteries do explode, that's your fault -- not the fault of the business selling the stuff.

[Kevin Carson]

Mr. Rob "Roy" Rogers,

Nobody forces people to go into bars and restaurants where smoking is allowed, either. We just had a big public issue over an anti-smoking ordinance here in Fayetteville, AR. And the city council finally passed it on Tuesday, after rejecting an option to put it to referendum. I don't smoke and I don't like to breathe the crap, but I like even less having paternalistic do-gooders saving us from ourselves.

[thoreau]

Good point, J Abel.

This poses a dilemma for the trial lawyers. If a restaurant denies service to fat people is the restaurant fulfilling its "duty" to look after the health of fat people? Or is it discriminating?

Maybe the answer is that restaurants should only serve healthy food in small portions, and not discriminate against fat people. Then we won't have our cake and we won't eat it either...

Anyway, I think it's vital that these restaurant management decisions be taken out of the hands of restaurant owners and be placed in the capable hands of the American Bar Association!

[Phil]

joe,

Eating fast food occasionally is not unhealthy. PCP doesn't cause every user to become violent.

[EgoLadenDilettanteGuy]

Mr. R"R"R
"Fresh apples", ok! But "whole-grain bread, brown rice and broccoli"--there you're talking pure distilled evil.

[Curt Warner]

For yuks y'all should check out banzhaf.net, particularly the essay about "potty parity." I mean, I'm no McDonald's fan, but ... good lord!

[nm156]

Or we could bring back the stocks. You know, file a nonsense suit, spend 24 hours in the public square with no place to go and a basket of rotting fruit and veggies nearby.

[joe]

McDonald's food is inherently unhealthy, in any amount, on any schedule. However, our bodies have certain defenses, and can put up with a certain amount of unhealthy food.

I never said every user.

[Douglas Fletcher]

"... old Catholic nuns and black grandmothers..."

Unfortunately, these days you're as likely to get a couple of old liberation theology lesbians and a few Carole Mosely Braun's as you would the old stereotypical no-nonsense versions of nuns and grandmas.

Thank you.

[Highway]

I think Skip might be onto something with the posted bond idea. While this will act as a barrier to entry, perhaps the bond amount could be set as a percentage of the damages sought. That would help to put some valuation on the validity of the suit. It would also provide a brake against filing with outrageous claims of damages to pump up media coverage. Yet for someone who thinks they sincerely have a good case, there should be less of a problem convincing someone to loan them the bond amount.

Just floating an idea...

[Jason Ligon]

Kevin Carson:

I'll take loser pays and its results. As long as civil litigation only requires 'a preponderance of evidence' and as long as lawyers get to keep trying until they have a victory, plaintiffs are in the position of no loss and possible gain with each additional suit. Add to this the power of the class action, and the system is heavily slanted in favor of the plaintiff. It is as though you have a football game where one team only has to make it to 50 yard line, and if they don't at first, they get to keep trying over and over again.

There is no institutionalized protection for defendants. The only reason they don't always lose eventually is judicial integrity, which seems awfully tenuous to me.

[chthus]

Running with the bond idea. Investors could then post the bond for "good lawsuit ideas." They agree to take the hit if it goes sour, but should it payoff, they get their percentage of the take. These companies could spread out their losses by becoming publicly traded and dealing in bulk cases. Lawsuit Investment Co.s could then hire their own investigators and mock juries to determine viablitiy of specific cases. Of course, they could charge potential plaintiffs a fee to even examine their cases (%10 of potential bond?). Other large corporations would be wise to invest in Lawsuit Investment Co., as they would reduce their chances of being sued. Eventually, you may end up with only a handful of these types of companies, the others having had their investors sued into submission. These few would be unlikely to call a lawsuit truce as this would mean the end of their company. An all-out lawsuit war would erupt with one LI company coming out on top and having the authority to regulate all lawsuits in the land.

[Skip Oliva]

chthus presents an interesting scenario, to which I would point out that the current system already features this problem. Lawyers like John Banzhaf essentially pay their own costs for litigating the early "loser" cases with the intent of scoring it big when they win one. These lawyers are, in effect, lawsuit corporations of sorts.

[Mark A.]

When I read "Every lawsuit is first vetted by a committee consisting of old Catholic nuns and black grandmothers. If the complaint is idiotic the plaintiff will be literally kicked out of the courthouse and told not to come back until he's got some sense in his head", it made me guffaw and the coffee I was drinking came out my nose!

I'm gonna sue your ass, thoreau! 🙂

[joe]

"Admitting a basic fact (fast food is unhealthy) is not the same as subscribing to the paternalistic reaction to that fact (ban it and sue the guys who make it)."

I've noticed that Reason does this a lot. Though allegedly arguing that people have the right to do things that are bad for them, the writers here feel the need to also try to refute scientific evidence that things are bad for you. So we end up with assertions that addiction doesn't exist, fast food isn't bad for you, PCP doesn't cause people to become violent, automatic weapons are no more lethan than semiautomatics, etc. Similarly, I've often seen it argued that it's better to let a free economy cover the cost associated with global warming, but by the way, there isn't any global warming, or costs associated with it.

You end up looking like the defendant who says, "I didn't rob the bank. But if I did, it was to buy presents for orphans."

[J Abel]

If the fast food companies are successfully sued for selling food that makes people fat, does that mean that in the future restaurants will have the right to refuse service to the obese? Kind of like a bartender telling a guy he's had enough.

[Steven Crane]

I don't know how it is anywhere else... but in Illinois, in civil cases, the plantiff is the one who has the option of selecting a jury/bench trial. If I were getting sued, especially if I had a reputation of being one of the many members of "The Man", I'd much prefer having a judge handing down the verdict, rather than a bunch of local yahoos.

[thoreau]

Well, loser pays has its problems, but we need some mechanism for distinguishing between plaintiffs with legitimate cases that need careful examination by a jury and idiot plaintiffs with frivolous lawsuits. Here's what I propose:

Every lawsuit is first vetted by a committee consisting of old Catholic nuns and black grandmothers. If the complaint is idiotic the plaintiff will be literally kicked out of the courthouse and told not to come back until he's got some sense in his head. If the complaint is reasonable the plaintiff will be patted on the head and told how cute and nice he/she is.

There, problem solved! 😉

[arjay]

joe

I never saw such bullshit, and I've read a lot of your posts. Exactly what McDonald's food is inherently unhealthy? In fact how is what McDonald's serves different from a "normal" diet?

Give an answer, not your usual "they're capitalists so they're evil" crap.

[arjay]

The same can be addressed to Mr. Rob "Roy" Rogers

[arjay]

Sorry I took a cheap shot and youre right, you don't deserve it.

But you still haven't answered except with the fact that you personally do not like food from McDs.("Read the nutritional info they post, arjay. If you can stand the smell.") Many years ago they're was a U of Fla Nutrition Prof who praised the Big Mac as an almost perfect balanced meal. I have not seen any body dispite this. Quite unrelated to his food opinions he was murdered by a couple of gay bashers. Does anyone else remember the story, he was nicknamed Dr Junk Food or something?

BTW, I don't particularly like McDs and can't eat burgers anyway because I'm on a restricted carb diet so I have to throw away the buns and that makes them hard to eat.

[joe]

Read the nutritional info they post, arjay. If you can stand the smell.

"they're capitalists so they're evil"? It ain't me you're looking for, babe. I believe the strongest condemnation I've had for capitalism is "flawed" or "imperfect." I guess I shouldn't have been the first to stop clapping for Stalin.

[Chimera Beth]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://www.penis-enlargement-medication.net/
DATE: 12/09/2003 10:54:16
Unusual ideas can make enemies.

[Hooper Chris]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://penis.nonstopsex.org
DATE: 12/20/2003 05:08:47
The greatest administrators do not achieve production through constraints and limitations. They provide opportunities.

[Bromberg Brian]

EMAIL: [e-mail]
IP: 210.18.158.254
URL: http://preteen-sex.info
DATE: 05/19/2004 11:53:37
He who has a thousand friends has not a friend to spare,And he who has one enemy will meet him everywhere.