Wisconsin Governor Jim Doyle’s veto last Wednesday (3/17/04) of two legislative tort reform measures sends a clear message to obesity claimants and their lawyers: “Bring ’em on.”
Assembly Bill 595 would have immunized persons who manufacture, market, pack, distribute, advertise or sell food from civil liability for weight gain or obesity “caused by the consumption of the food, or for a health condition related to weight gain or obesity.” Under Senate Bill 49, expert scientific, technical or other testimony would have been admissible only if found by the judge to be “reliable.” Governor Doyle’s vetoes mean that the food industry remains exposed to frivolous obesity claims and that these claims can be based on “junk science.” The Wisconsin legislature ought to override these vetoes.
The governor said in a statement that he vetoed the obesity measure because there was only a “remote chance” obesity suits would be brought. “This legislation is a solution in search of a problem, and is not needed. There have been only a handful of lawsuits nationwide, all dismissed, and none in Wisconsin.”
Maybe so, but it’s only a matter of time.
“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,” John Banzhaf, a law professor at George Washington University, told the New York Daily News in January. Banzhaf was the “mastermind” behind the tobacco litigation and advised the plaintiffs counsel in the obesity suit against McDonald’s in New York last year.
The plaintiffs’ obesity bar, along with complicit consumer advocates met nearly a year ago in Boston to plan their strategy, which involves developing “scientific” data to portray obese plaintiffs as “victims” of an addiction to fast food. One such study of laboratory rats was authored by neuroscientists at the University of Wisconsin School of Medicine last year. “The combination of fat with sugar or fat with salt seems to have a very particular neurochemical effect on the brain,” said Ann Kelley, one of the study’s authors, on Fox News last year. “What that does is release certain chemicals that are similar to drugs, like heroin or morphine.”
Relying on this study and several others, Banzhaf sent a letter last summer warning Burger King, KFC, McDonald’s, Taco Bell, and Wendy’s “of a growing body of evidence that foods of the type served at your fast food restaurants may produce additive like effects, and of the consequent need to consider posting a health warning or other appropriate informational notice to avoid potential legal liability.”
The letter went on to state that “the legal duty to warn or inform customers does not arise only when evidence of possible harm is conclusive and generally accepted by the scientific community. Rather, it occurs whenever the information might be relevant to a reasonable person making a purchasing decision. … It is also the same reason that doctors must warn patients of even a remote risk suggested by a single scientific study, even if the study hasn’t yet been replicated and/or is apparently contradicted by other studies or by conventional scientific or medical wisdom.”
In other words, the plaintiffs’ bar is warning the fast food industry that obesity suits can be sued based on expert evidence that now flunks the reliability test. And because Governor Doyle vetoed Senate Bill 49, such unreliable evidence would be fully admissible in Wisconsin courts and up to the jury to evaluate.
That’s just fine with Banzhaf, who cites a 2003 survey that potential jurors in suits by obese plaintiffs against fast food corporations, 56.5 percent would side with the defendant, while 24.4% would find for the plaintiff and award damages. This is almost identical to a 2002 National Law Journal survey of potential jurors in cases by smokers against tobacco companies, which netted the plaintiffs and their lawyers the tidy sum of $370 billion in the 1997 tobacco settlement.
And no one should find any comfort in the fact that the New York case against McDonald’s was dismissed twice by the Federal District Court. In the first ruling, the judge dismissed a count based upon the sale of an addictive product because it was too vague, but invited the plaintiffs to file a fuller pleading. The plaintiffs dropped that count the second time around, however, filing claims only under New York consumer fraud statutes. These claims were dismissed due to technicalities in those laws.
Here we go again.
Maureen Martin, a Wisconsin attorney, is Senior Fellow for Legal Affairs for The Heartland Institute, a national nonprofit organization. If you have any questions or need additional information, please contact Allen Fore, Vice President-Public Affairs at The Heartland Institute at 312-337-4000 or [email protected]. Reprint permission for this Heartland Perspective–on op-ed pages, in newsletters, etc.–is hereby granted. Please send a tearsheet to The Heartland Institute, 19 South LaSalle Street #903, Chicago, IL 60603.