Class action suit against junk food companies?

[ChocoKitty]

I'm still shaking my head....

http://www.foxnews.com/story/0,2933,43735,00.html

[tommy]

is the pay-out calculated by the pound?

i think i should sue the guy who sells me pot because it makes me lethargic, which in turn makes me want to eat and not want to go to the gym.

and to paraphrase denis leary, can i sue john dever for making me into a p*ssy in the 70s?

[Lily]

Quote: from ChocoKitty on 12:00 pm on Jan. 25, 2002

I'm still shaking my head....

http://www.foxnews.com/story/0,2933,43735,00.html

Thank you, thank you, thank you for posting this ChocoKitty!  I think I've found my ticket to independent wealth.  Course I'll have to spend it all on fat farms, but hey!  ;)

[Ron Johnson]

Foxnews has no journalistic integrity.  Did anyone notice that nowhere in the article does it state that any lawyer in America is currently pursuing such a case.

Foxnews totally invented this scenario and then asked some bozos to comment on it.

Their follow up story will be about the possibility of suing John Denver and Tommy's pot dealer.

I think that you can get more reliable hard news from E! Entertainment Network.

[Wilfrid]

Thanks for clearing that up Ron.  If anyone has been pondering the concept, here's one reason it may be unattractive to lawyers:  whereas very very few non-smokers get lung cancer, all of the diseases associated with junk food consumption occur very widely among people whose consumption of junk food is minimal or even zero.

If I died of a heart attack and my estate wanted to claim damages from several major junk food chains, they would have to show - at least on the basis of probability - that my heart trouble was caused by consumption of junk food, and not by the other food I was eating anyway, not by alcohol, not by lack of exercise, not by genetic predisposition, and so on.  And because these circumstances would vary in the case of each potential claimant, there would be difficulty in getting a class certified, and thus less prospect of a big payday.

An alternative might be to argue on a strict liability claim that junk food is inherently unsafe.  Can't see that either.

(Still not an attorney, by the way).

[Peter B Wolf]

Tommy, to your post 25Jan09:21,

read on about funny lawyers and judges. The following was sent to me just a few days ago from a friend in the Military, stationed in Germany. Here it is

"Most of the country has heard of the Darwin Awards given annually to the individuals who do the most for mankind  by removing themselves from the gene pool.

Now, we have the Stella Awards given to the individuals who win the  most frivolous lawsuits ever. The Stella Awards are named in honor of 81 year-old Stella Liebeck, the woman who won Ū.9 million for spilling a cup of McDonald's coffee on herself. The following are candidates for  the award:

1. January 2000: Kathleen Robertson of Austin, Texas, was awarded 辬,000 by a jury of her peers after breaking her ankle, tripping over a toddler who was running amuck inside a furniture store. The owners of the store were understandably surprised at the verdict, considering that the misbehaving little fellow was Ms. Robertson's son.

2. June 1998: 19 year-old Carl Truman of Los Angeles won ๚,000 and medical expenses when his neighbor ran over his hand with a Honda Accord. Mr. Truman apparently didn't notice there was someone at the wheel of the car when he was trying to steal his neighbor's hubcaps.

3. October, 1998: Terrence Dickson of Bristol, Pa., was leaving a house he had just finished robbing by way of the garage. He was not able to get the garage door to go up, because the automatic door opener was malfunctioning. He couldn't reenter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation. Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found in the garage and a large bag of dry dog food. Mr. Dickson sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of a half million dollars.

4. October 1999: Jerry Williams of Little Rock Arkansas was awarded พ,500 and medical expenses after being bitten on the buttocks by his next door neighbor's beagle. The dog was on a chain in its owner's fenced-in yard at the time. Mr. Williams was also in the fenced-in yard. The award was less than sought because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was repeatedly shooting it with a pellet gun.

5. December 1997: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pa., 贑,500 after she slipped on a soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boy-friend 30 seconds earlier during an argument.

6. December 1997: Kara Walton of Clamont, DE., successfully sued the owner of a night club when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the ū.50 cover charge. She was awarded ผ,000 and dental expenses.".

[Blue Heron]

not to bash lawyers, but if there were a way to regulate the billions the lawyers make from these frivilous lawsuits so that they make more in line what other professionals make, these cases would drop off significantly.   The judgements don't really hurt the big businesses anyway...they just pass on the costs to us, their customers.  Basically, as I see it, it's just the lawyers that are coming out ahead.  The Stella Award should go one step further, by mentioning the name of the undeserving lawyer, too.

On the other side, why was McDonalds serving coffee capable of causing 3rd degree burns?  Why didn't they lower the temp of their coffee after receiving 700 other burn claims against them before this elderly woman's case?  Why didn't they settle her case for the ฤ,000 she initially asked for?  The Ū.7 million punitive damages were later reduced to 躀,000.   For other intersting facts about that case see   http://www.lectlaw.com/files/cur78.htm

[Jinmyo]

[Are you a lawyer?

"No. But I'm playing one on eGullet."

Oh. All right then.]

Then the Chewbacca Defense.

(Edited by Jinmyo at 9:00 pm on Jan. 25, 2002)

[Peter B Wolf]

Apologizes here, my post above should have gone to the next post "Six Rests...."

But it seems to fit pretty well here too.

[Fat Guy]

Ron, what is your support for the statement that Fox News cooked up this scenario and asked others to comment? This has been a widely discussed topic in the law school classroom since at least the time I was in law school, and it no doubt has been given greater currency since the Surgeon General's recent pronouncements. I have to assume it either is now or is soon to be one of the very highest priorities for the trial lawyers. Will you be truly be surprised when the first such lawsuit is filed, if it hasn't been already? I also see no place in the story where it was anything but completely clear about this being a hypothetical species of lawsuit -- though, as it no doubt rightly points out, increasingly less so. You seem to harbor some sort of animosity towards Fox News, which is your right, but I see nothing about this particular story to support a charge of lack of journalistic integrity.

[Ron Johnson]

I harbor no animosity toward Fox news.  However, it was clear from the responses to the article that many readers were under the impression that some lawyers had indeed undertaken such cases.  

Therefore, the support for my statement that they have written about a scenario that is not currently in litigation is the fact that even their own article cannot cite to a single instance of such litigation in this country.  However, the article gives the impression that thousands of money hungry trial lawyers are eagerly licking their chops as they prepare to file suit against the "junk foood" industry.  Because they are unable to cite any such case, they are forced to elicit hypothetical scenarios from law professors and then pass them off as if these individuals have some profound insight into the future of litigation in America.  Even you admit that this topic has been relegated to discussion in the law school classroom.  If there is any group of individuals in the legal profession who are less in touch with the realities of law, especially litigation, it is the professors sequestered in their ivory towers with only the faintest notion of how to find the courthouse.  However, by publishing such a story/hypothetical scenario Fox has suceeded in perpetuating the myth that trial lawyers pursue frivolous lawsuits and only for the purpose of lining their own pockets.

A myth that has grown immeasurably due to the terrific power and wealth of the insurance industry.  Their public relations campaign has been relentless and unbelievably successful.  This is evidenced by the posts of Peter B Wolf and Blue Heron above, both of whom are firmly convinced that the myth is true.

Peter B Wolf even took the time to describe several cases which have received a "Stella Award".  When taken out of context and given only a tiny sound byte of the facts of a case it is easy to make them appear 'frivolous".

The truth of the matter is that less than five percent of the cases that are in litigation in this country involve personal injury.  The rest are businesses suing other businesses, businesses suing people, and divorces.  Of that five percent that are personal injury only a tiny miniscule amount are frivolous (brought by inexperienceed lawyers who think they know how to pursue a Plaintiff's case).  Those suits that are frivolous do not make it to trial due to Summary Judgment.  This is a matter that if left to the judge, it never gets to a jury.

As for the "Stella Awards", it is interesting that everyone always talks about the 2.7 million instead of the actual amount of 躀,000.  Furthermore, the devastating injuries she recieved are always conveniently forgotten in order to heighten the "frivolousness" of her lawsuit. She was severely burned in a location that I will not mention here and had to undergo serious procedures to remedy it.  Additionally, it was proven that McD knew that there coffee was served at a temperature high enough to cause severe burns, that it was served in cups that would not contain the coffee if tipped over (not the case with coffee houses which have secure lids), that they served their coffee at a temp much higher than others in the industry, that they knew a high percentage of coffee was spilled especially when served at drive-thru window, that they continued to serve the coffee at the high temp because it lessened the amount of refills given and people liked the fact that their coffee was still hot when they got to the office.  In other words McD engaged in behavior that they knew put their customers in danger, but continued to do so because it made them lots of money.  Of course that doesn't fit so neatly in the space alloted for the Stella Awards.

There is an oft-quoted line from Shakespeare:

"First, kill all the lawyers."  However, few people know that the entire quote is actaully:

"If tyrrany is to prevail, first kill all the lawyers."

Everday I represent people who are hurt by the negligence or intentional acts of large corporations.  These people have no money to hire a lawyer who charges an hourly fee.  Therefore, I take cases on a contingency fee basis.  Some of them pay me well, which barely makes up for those that don't pay at all.  Additionally, I advance the costs of litigation so that my clients don't have to, often costing me in exccess of 贄,000 for a case.  If the case is lost, so is the money.  I am not getting rich doing this, but I believe in what I do.  It offends me greatly that people so flippantly assume that I am a money grubbing, unscrupulous scumbag because I choose to represent people instead of corporations.  No one ever seems to bad-mouth the large firm corporate lawyers who make millions of dollars per year and often defend corporations that they know intentionally hurt people in order to make money.  Hmmm, thats odd.

Well, thats just my two cents worth.  And for what it is worth, I come to this website periodically throughout my day as a way to escape from the rigors of my law practice and talk about what I really love: wine and food!

[Fat Guy]

Ron, I'll be the first to admit that most trial lawyers are perfectly nice, ethical people who are performing a necessary and admirable function. I refer clients to such people all the time, and I'm glad when they recover what they deserve. I'm also amazed at how many legitimately injured people recover less than they should on account of the bias against trial lawyers that you describe. Nonetheless, the profession is also burdened with a startling number of unethical and politically motivated agitators who have immeasurably increased the costs of doing business for most every legitimate company in America. So again, I ask you, will you be surprised when a class action suit as described in the Fox News piece actually gets filed? If so, I suggest we wait and see. If it hasn't happened in a couple of years, we'll see who was right.

Now, I also have several friends who are law professors, and I assure you they don't live in an ivory tower. Some of them have become judges. Others will eventually do the same. Nearly every law professor I know is called upon to testify as an expert witness in cases that impact his or her area of expertise. Most of them, also, have put in some years at good law firms, clerked for federal judges, and otherwise excelled in the profession. Indeed, some of America's foremost practicing attorneys are law professors. Law professors aren't like liberal arts professors. They are involved in what is essentially vocational education, albeit at a very high level. So just as we shouldn't walk away from this thread thinking ill of all trial lawyers, we should also reject some stereotypes about law professors.

As for the McDonald's matter, I really am surprised you've chosen to justify the plaintiff's position. Even having read most everything there is to read about the lawsuit and stripping away all the sensationalist reporting, it strikes me as a textbook example of frivolous litigation: Suing a restaurant for serving hot coffee.

And finally, regarding Fox News, I must then assume you believe that no major media outlet has journalistic integrity. Because the attitude towards trial lawyers that you describe is evident in news reports on every network and in most every newspaper. So I think it would be wrong to single out Fox News as an anti-trial-lawyer organ.

[Ron Johnson]

Steven:  As I said in the first line of my post, I have no animosity specifically toward Fox News.  Don't really know how much clearer I can be on that one.

As for the McDonald's case, it is simple.  The plaintiff was badly injured.  Why was McDonalds at fault?  Because they sold a product that they knew was likely to cause injury but did it anyway in order to make money.  The coffee was served much too hot so that it would discourage refills and remain hot during the commute to work.  This gave them a market advantage over competitors that served coffee at lower temperature.  They served a beverage that was hot enought to severely burn human tissue in a cup that would not contain the coffee if spilled.  Why, because changing the container would cost more money.  Ultimately, McD realized that it would be more profitable to settle cases with those injured than change their behavior.  So the jury thought that 2.7 million might make them rethink that.

It is no different than the Ford Pinto case.  There, Ford knew that the gas tank was too close to rear of the car, but did the math and realized it was cheaper to settle cases with those burned/killed in accidents than retool the assembly line.  It was an internal memo stating this strategy that caused them to get hit with a punitive damages award.

However, having severe burns from coffee is viewed as acceptable by the public.

The bottom line is that people love to bash trial lawyers until they need one.  It is interesting how the injuries are always frivolous until they or their loved ones suffer the injury.

I actually had a potential case where a man's young daughter was burned on the face because she was standing at the counter with her father and the counter-clerk spilled hot coffee across the counter and splashed onto her face.  She had some significant scarring, but we declined the case because no jury in America would award anyone damages for being hurt by hot coffee after the McDonalds case.  Corporate America wins again.

[Wilfrid]

Maybe someone could sketch a hypothetical junk food case that would be worth taking on.  I am having some difficulty conceptualising it.  Heart disease is the most obvious adverse health outcome.  You need a plaintiff with a demonstrable heart condition.  Ideally it would be a plaintiff without much heart disease in their immediate family, who takes a reasonable amount of exercise, and does not drink to excess.  They have to be a never-smoker - that's essential.  Then you would want to be able to show that they eat pretty much exclusively the food sold by the "junk food" chains you are suing.

You need all the above just to have a hope in ####'s chance of convincing a jury that their heart condition couldn't equally likely have been caused by a bunch of different factors.

But next: what is your argument against the companies going to be.  Failure to warn?  Failure to make a safer product (I did read a New Yorker article a while back which gave grounds for believing that McDonalds could be making healthier fries)?    The companies will point to the billion-dollar diet-promoting industry in this country to show that the plaintiff certainly had knowledge of the risks of a junk-food high diet, and voluntarily assumed the risk.  They will then point out that, while they offer some low fat alternative products, they can't provide the kinds of products consumers demand and at the same time make them so safe that they can be consumed to excess.

Play out the scenarios - if I were an attorney (and I'm not), I would not be investing in an experimental case along these lines.

[tommy]

i'm still going to sue my dealer.

[Katherine]

I am not a lawyer either, but it seems to me it would be difficult to get past the point that these companies are providing a product that people demand. The CSPI notion that all food producers and restaurants should suddenly stop providing foods that people enjoy and are willing to pay for and start selling only foods that few want or will buy is just bizarre.

Totally aside from the fact that the science behind all these commonly accepted dietary notions does not show a really good correlation between radically modifying your diet in these ways and significantly extending your lifespan.

If you are a person who has special dietary needs, then you should definitely pay heed to your doctor. For people not at risk to drastically change their diet in order to, say, reduce the national average cholesterol reading, would result in people at the low end falling into the danger zone.

This makes as much sense as saying that all Americans should give up drinking, because some people have a problem with it.

[Wilfrid]

I agree with you entirely, Katherine.    Indeed, what I have seen of results from intervention trials, where some members of a opulation with "unhealthy" lifetsyles are switched to "healthy" lifestyles, while the remainder continue as normal, suggest that there's at least a possibility that dramatic changes - even suposedly for the better - may actually be harmful to health.

[Fat Guy]

Ron, the maximum temperature of coffee that is possible to achieve in the physcial universe (at sea level) is the temperature of boiling water. When boiling water is treated as a hazardous substance, we're all in trouble, especially when it is included in a beverage that every rational person expects to be made with boiling or near-boiling water. The case against McDonald's was so patently absurd that it boggles the mind.

It is no more difficult to prove a connection between junk food, obesity, and death than it is to prove a connection between cigarette smoking and cancer or breast implants and the diseases associated (questionably) with them. Neither of the latter cases was ever supported by a scientifically proven causal connection -- only by epidemiology -- and each is a product people wanted.

[Wilfrid]

Quote: from Fat Guy on 2:12 pm on Jan. 28, 2002

It is no more difficult to prove a connection between junk food, obesity, and death than it is to prove a connection between cigarette smoking and cancer or breast implants and the diseases associated (questionably) with them. Neither of the latter cases was ever supported by a scientifically proven causal connection -- only by epidemiology -- and each is a product people wanted.

I agree with your conclusion, and actually have never seen a tobacco-related law suit that had any merit - but would contend that it's going to be much much harder to show a connection between junk food and the alleged injury than between smoking and (at least) certain types of lung cancer.  In the latter cases, smoking was often far and away the most likely cause of the injury; whereas for an obesity-related disease, how do you know if it was the hamburgers, the lack of exercise, the hypertension which runs in the family, etc, etc.

By the way, tobacco cases generally have no merit, not on medical grounds, but because the risks are known and assumed, and no-one can agree how to make cigarettes safer.  The great achievement of the plaintiffs bar has been to obscure those two issues.

[yvonne johnson]

Fat-Guy "the maximum temperature of coffee that is possible to achieve in the physcial universe (at sea level) is the temperature of boiling water."

I'm not a scientist, but I think it is true that water can be superheated (in microwave) and it will reach a temp that is higher than its regular boiling point.

[Fat Guy]

Sure, you can simulate various conditions and apply various processes (such as a pressure cooker) to increase the boiling point of water, but that's not what we're talking about here. If you put water in a kettle on a stove (or the equivalent boiling device) at sea level you can boil it for a week and it will never get above 212 degrees in our universe.

[Wilfrid]

I am going to try that when I get home.  Leave it on the stove for about a week, right?

[Fat Guy]

Just be sure to start with a bathtub full of water!

[Ron Johnson]

Steven, I have painstakingly broken down the McDonald's case for you, but I can't make you understand it.  Water cannot be hotter than 212 degrees, above that it turns into steam.  That is common knowledge.  I am incredulous that you rather sarcastically state that boling water is not hazardous.  If you do not feel that boiling water can be hazardous I encourage you to bring a pot to a rolling boil and then pour it onto your genitalia.  Upon release from the hospital, please post on here again and let us know if you opinion has changed.

As for your comparison of junk food to tobacco and breast implants, they are not at all similar.

Tobacco contains nicotine which is a physically addictive substance.  Tobacco companies knew this and manipulated the level of nicotine in cigarettes in order to make sure that people were "hooked".  This was a fact that Jeffrey Wigand revealed when he blew the whistle on big tobacco.  In this way they were behaving much like Tommy's pot dealer.

Breast implants were alleged to be defective in that they leaked silicon into the body.  You are correct that the causal link between silicon and connective tissue disorders was difficult to establish.  However, it was breast implants themselves that were the subject of the lawsuit, but a certain type of breast implant which was alleged to have a defect (leaking silicon).

Junk food is not addictive in the sense that the drug nicotine is. Some people may not be able to control their consumption of junk food, but that is due to their own psychological disorders or impulse control problems.

Junk food is not defective in the manner that the Dow Corning breast implants were.  No one is alleging that Big Macs are generally safe but some batches have been known to leak extra fat into the bloodstream due to a manufacturing or design defect.

If tobacco wasn't a physically addictive substance, no plaintiff would have prevailed.

If Dow Corning breast implants had not leaked silicon, no plaintiff would have prevailed.

Neither of these elements are present in junk food.

Some idiot may attempt such a suit someday, but unlike the McDonald's case, he/she will not have much with which to work.

[Fat Guy]

Ron, there are not only individual idiots out there, but also well-organized and funded interest groups that pursue litigation for political purposes. You describe the legal theories that prevailed against big tobacco and breast implants as though they were obvious. In fact, they were the end results of hundreds if not thousands of experimental lawsuits in most every state, pursuing every legal theory imaginable and some unimaginable ones as well. Those particular theories you cite happen to be the ones that won. They are neither the most compelling theories nor are they even sensible unto themselves. The breast implant claims in particular were based on junk science that has been thoroughly discredited. But the courts don't demand real science -- only "experts." (When I read Fast Food Nation, the first thing I thought was that Schlosser has a great career as an expert witness ahead of him.) The fast food industry is too deep a pocket for the plaintiff's bar to ignore. Eventually, somebody will have success with such a lawsuit. Perhaps the prevailing plaintiff will be able to hang his hat on misrepresentations made by a company as to healthfulness. Perhaps there are food additives that can be found to be addictive. Perhaps there will be child plaintiffs, who will be found to be victims of advertising. Perhaps the foot in the door will come from a health code transgression. Once the discovery fishing expedition begins, various corporate documents will be unearthed and presented in the most unfavorable possible light, because the average juror is easily offended by the fact that corporations want to make money. Plaintiffs will coordinate and strategize. In hindsight, we will be told, "It wasn't that the food was unhealthy per se, it was that the company concealed the truth . . ." or some such nonsense. I consider a series of major lawsuits against junk food companies to be inevitable.

I am well aware that boiling water can burn a person. I am also well aware that when I purchase a beverage made with boiling or near-boiling water, it can have the same effect on me. Yet I occasionally purchase and ingest such beverages despite the tremendous risk to my health and safety. We have a word for people who don't understand that.