Fighting Lawsuit Abuse and Exposing Frivolous Lawsuits
Issue 41 - April 16, 2004
In this Edition:
Legal Reform: Willpower: Losing Weight The Responsible Way
Tort Du Jour: Stop That Train?
Testimony: America's Civil Justice System is Broken
Willpower: Losing Weight The Responsible Way
I have known Tommy Thompson, the former governor of Wisconsin and current Secretary of Health & Human Services, for decades.
We've had our differences every now and then, but we've been on the same side plenty of times too. He has been a real leader on important issues such as welfare reform, education reform and, most recently, losing weight.
No one can deny that Tommy Thompson has personally set an example for the country on the last issue.
Not only did he challenge those in his Department to lose weight, he did so too, losing 15 pounds over nine months.
He did not seek a doctor's advice. Simply through moderate exercise and restraint in his diet, Secretary Thompson has been able to lose pounds the old fashioned way.
His once frequent stops for a late night hamburger and beer became much less frequent.
He starts each day with sit-ups and pushups.
Nor does he intend to stop there; he still wants to lose ten more pounds.
Simple common sense and restraint on the part of Secretary Thompson has made a real difference.
Unfortunately, there are Americans who -- rather than ask what they can do themselves to control their weight -- want to blame others for their obesity. Some are also hoping to fatten their wallets that way.
A few years ago, when Caesar Barber, who weighed 272 pounds, filed a lawsuit against Burger King, McDonald's, Wendy's and Kentucky Fried Chicken in the Bronx Supreme Court, he complained to The New York Post, "The fast food industry has wrecked my life."
True, he was overweight and had experienced health problems but the four chains had provided information about the calories and fat content of their meals.
Mr. Barber's case provides only a taste of what is to come, pardon the pun.
John F. Banzhaf III is a big-name, litigious-minded George Washington University Law School professor who made a name for himself by urging litigation against the tobacco companies. A few years ago, Banzhaf appeared on CNN's Crossfire program and Robert Novak confronted him with a picture of his vanity license plate "Sue Bast" which Banzhaf admitted was shorthand for 'sue the bas-----.'
A few years ago, Banzhaf told CBS News "the lawyers have definitely smelled blood in the water" and, no doubt, many trial lawyers dream of winning supersize settlements against fast food companies. Even if Banzhaf does not end up pocketing the settlements -- if any result -- from his work, he certainly has obtained ample media attention from his position as Executive Director of Action on Smoking & Health for his work against the tobacco industry. Evidently, Banzhaf now expects the spotlight to come his way by taking on fast food companies.
In August 2002, he went so far as to predict that "Somewhere there is going to be a judge and a jury that will buy this, and once we get the first verdict, as we did with tobacco, it will open the floodgates."
There are some formidable obstacles in John Banzhaf's way.
A Gallup Poll discovered last year that the overwhelming majority of the American people do not favor lawsuits against fast food restaurants.
Furthermore, the House of Representatives last month approved the "Personal Responsibility in Food Consumption Act" (H.R. 339) sponsored by Rep. Ric Keller (R-FL) by a 276-139 vote.
A tougher test is likely to occur in the U.S. Senate where the trial lawyer lobby, led by Senator John Edwards (D-NC), and the Senate rules may conspire to block this needed reform.
Fortunately, Sen. Mitch McConnell (R-KY) is the sponsor of the Senate companion to Rep. Keller's bill -- the "Common Sense Consumption Act" (S. 1428) -- and he is an able and articulate advocate. The Common Sense Consumption Act will "prohibit civil liability actions from being brought or continued against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for damages or injunctive relief for claims of injury resulting from a person's weight gain, obesity, or any health condition related to weight gain or obesity."
At this time last year, Senator McConnell addressed a conference held by the Free Congress Foundation on "Restoring Responsibility -- Litigation, Victimization, and the Corruption of Culture." He warned:
"An obviously disturbing thing about lawsuits against 'Big-Fast-Food' is that they promote a culture of victimhood and jettison the principle of personal responsibility. But an equally-disturbing aspect, and one which particularly concerns me in my role as a U.S. Senator, is that such cases circumvent legislative decisions and subvert the democratic process.
The Senator went on to say:
"Under this practice [of "regulation through litigation"], the legal process is used not to compensate parties who are injured due to the breach of an existing and recognized duty. Rather, the judicial system is used to impose new duties, after the fact, on lawfully-run, though politically incorrect, industries."
Senator McConnell noted that, even if the concept behind the judicial decision is indeed beneficial, it is counterproductive to the industries that are experiencing 'regulation through litigation' in that they had not been given fair warning. Indeed, the judge and jury are not equipped to thoroughly investigate the facts behind the broader public policy issue that they intend to pass judgment on.
However, as Senator McConnell asserted, "The more fundamental problem with 'regulation through litigation' is that private parties obtain through lawsuits what legislatures have not chosen, or even have chosen to reject."
The answer, he concluded, is to encourage a greater sense of personal responsibility throughout our culture.
The trial lawyer lobby and their friends in the public health profession can be counted on to reflexively protest that that will be impossible without having the Federal Government launch a new program, complete with a super-sized budget, and a slew of whopper-sized court settlements against the fast food companies.
Is that true?
Well, Secretary Thompson just showed the country differently.
If he can do it, so can his fellow Americans. As a matter of fact, I've done it myself and, every now and then, I manage to visit a fast food restaurant and enjoy a healthful meal. It's time we have faith in the willpower of Americans to keep their weight down without unwanted and unnecessary help from lawyers and bureaucrats. Let's face it: Americans need to be served up a heaping helping of common sense when it comes to keeping their weight down.
-by Paul Weyrich
Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation (www.freecongress.org).
Tort Du Jour: Stop That Train?
"A California man who passed out drunk on the railroad tracks sued the Union Pacific railroad because its engineer and conductor did not sound the train's horn after seeing him they were too busy trying to engage its emergency brakes."
Source: Walter Olson, "The Threat from Lawyers is No Joke," Imprimis, Hillsdale College, March 2004
Testimony: America's Civil Justice System is Broken
"America's civil justice system is broken. The problem extends well beyond class actions, into the medical malpractice, mass torts and product liability arenas. Our current system neither fairly compensates victims nor adequately deters wrongful behavior, and its extraordinarily high costs create a multibillion-dollar drag on the economy.
The failure of our civil justice system has led to a crisis in the availability of medical care in many states. Overwhelmed by skyrocketing malpractice insurance premiums, doctors have staged or threatened strikes in eight states. In many small cities in Mississippi, there are literally no obstetricians to deliver babies because they simply can't afford the malpractice premiums."
-Carrie Nixon and Jim Copeland, "Legislators Must Overhaul Medical-Malpractice Guidelines," DailyJournal.com, March 16, 2004
|Original articles in this edition of Legal Briefs may be reprinted provided source is credited.|