- The Washington Times - Sunday, July 13, 2003

Last summer, the theater of the absurd opened in New York. It was not on Broadway, but across town at the New York State Supreme Court in the Bronx. A 272-pound man named Caesar Barber sued four fast-food chains for causing his obesity. Later that year a similar spectacle played out in another New York courtroom, when two super-sized teenagers sued McDonald’s.

Fortunately, the plaintiffs lost — this time. Unfortunately, barring sweeping tort reform, obesity lawsuits have a very good chance of succeeding in the future. Last summer’s cases were merely shots across the bow in preparation for what promises to be a long and relentless war waged by trial lawyers. One such lawyer, named John Banzhaf, said this: “They can stand fast, make fun of us, call us the grease Gestapo and food police, and then we’re going to sue them and sue them and sue them, and I think ultimately, as with tobacco, we’re going to win.”

Trial lawyers are manipulating the legal system so lawsuits that never stood a chance in the past can actually succeed today. A case in point was the $246 billion tobacco settlement in 1998. And that settlement opened a Pandora’s box of similar lawsuits against other industries. Kraft Foods Inc. is scared out of its wits. Earlier this month it announced it would reformulate some of its products, limit portion sizes, and eliminate marketing in schools.

In the run-up to the tobacco settlement, trial lawyers got some state legislatures to actually change tort laws in order to ensure a win. The lawmakers were keen to oblige, thanks to the prospect of billions of dollars in new revenue without having to raise taxes. Decades of legal precedent based on fairness and common sense was thrown out. What had seemed absurd a decade earlier had become reality: industries could now be sued for selling a perfectly legal product to people who overconsumed that product.

Persistence paid. If the lawyers sued often enough, and tried out a variety of claims in a variety of venues, chances are that one day they were going to happen upon a judge and/or jury gullible enough to rule in their favor. Sure enough, that happened with tobacco. It could happen with the food service industry as well.

In recent decades, trial lawyers have implored novel tactics of making it easier to sue. Forum shopping — where lawyers can shop around the country for sympathetic judges — has become easier. The meaning of “negligence” has been liberalized. In many states, “experts” promoting junk science are allowed to testify. Traditional tort law is being thrown out the window.

Other abuses of the legal system include:

• Using a statistical correlation between an activity (such as smoking or fast-food consumption) and state spending on health care. This has done away with certain key elements of tort law. For example, states did not have to prove that a particular tobacco company’s product caused a person’s injury; courts allowed causation to be explained by statistical correlations.

• Requiring that defendants post a bond of as much as 150 percent of the original judgment in order to appeal a ruling. With judgments reaching into the hundreds of millions or billions of dollars, this rule effectively deprives many defendants their fundamental right to appeal.

• Giving some states “super-plaintiff” status, allowing states the right to recover greater damages than an individual is able to. This essentially eliminates a company’s or an industry’s tort defenses, as well as the necessary burden of proof from plaintiffs that the defendant did indeed cause the claimed injury.

• Cozy partnerships between state attorneys general and private plaintiff attorneys. To try high-profile, multibillion-dollar lawsuits, AGs have subcontracted the work — with no competitive bidding — to their friends, campaign contributors, and/or future employers. This creates a dangerous incentive for the law firms to distort legal principles in order to become fabulously wealthy.

Eradicating these abuses is long overdue. The prospect of billions of dollars in additional monies — this time from food service companies — is a powerful temptation for trial lawyers to further manipulate the legal system in their favor.

America cannot count on obesity lawsuits to be laughed off the national stage. This is why it is so important to enact legal reforms before the theater of the absurd becomes reality TV.

Duane Parde is executive director at the American Legislative Exchange Council, an individual membership organization of state legislators.

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