Lawsuit Abuse Fortnightly #1-4

Published June 24, 2002

Ronald McDonald on Trial

The tobacco industry warned for years that legal precedents set in lawsuits against it would lead to class action suits against other legal products. Critics scoffed, but the prediction is fast coming true. Suits against gun manufacturers and the former producers of lead paint abound. Noted anti-tobacco activist and law school professor John Banzhaf considers it possible to sue companies like McDonald’s and Burger King for misleading advertising and failure to warn about the health dangers of their products. Damages? How about the estimated $117 billion yearly cost of health care and lost wages from obesity-related illness? You might be thinking what we put in our mouths is our personal responsibility, right? Look how far that argument got the tobacco industry. From Solon.

Roulette Wheel Justice

A May 31 Fox News Live program began with these words: “Public health advocates and their litigators say compulsive gambling is a crisis that has reached epidemic proportions and something must be done to stop casinos from injuring the many addicts who look to them to feed their roughly $50 billion a year habit.” During the program, Scott Harshberger, president of the liberal advocacy group Common Cause, said casinos should be held responsible for the costs of treating gambling addicts since they “lure” people and families to engage in this high-risk behavior. When asked if this isn’t merely a ploy by the plaintiffs’ bar to win yet another jackpot, Harshberger replied: “To blame lawyers who bring that issue to public attention and perhaps get contingency fees as a result (emphasis added) is shooting the messenger.”

Funny, They Sure Looked Real to Us

Pity poor Penthouse. The skin magazine ran a series of pictures of a topless woman in its June issue it claimed were of reigning tennis sex kitten Anna Kournikova. Turns out they weren’t. Penthouse apologized to Anna; paid off the woman whose pictures they actually ran; and pulled all remaining copies off the stands. Now, to add injury to insult, the magazine is being sued for fraudulent misrepresentation by a Florida lawyer on behalf of himself and every other male who shelled out $8.99 for the June issue just to ogle the alleged Anna pictorial. From, among others.

Don’t Most People Learn to Tie Their Shoelaces Before Graduating from Medical School?

A New York orthopedic surgeon has sued athletic footwear giant Nike for $10 million, claiming the shoelace on her right sneaker somehow hooked around the back tab of her left sneaker, spilling her onto her wrists and knees and causing a wrist injury she claims imperils her career as a surgeon. Not having seen the complaint, Nike declined comment except to say people “sometimes don’t tie their shoes properly.” From The Associated Press.

Fen-Phen Liability Skyrockets to $13.2 Billion

Recruitment by trial lawyers of people who once took the popular diet drug combination nicknamed “fen-phen” has driven the estimated cost of settling all claims against its manufacturer to a colossal $13.2 billion. Fen-phen was taken off the market in 1997 when doctors found evidence it could cause heart valve damage. It has been estimated between one and two thousand people suffered serious health problems from the drugs, yet some 370,000 people have lined up for compensation from the manufacturer, American Home Products, now Wyeth. Many had no ill effects other than concerns they might become sick in the future. Wyeth’s general counsel believes in a different legal climate his company could have settled all serious claims for less than $1 billion. It has been estimated the trial lawyers who rounded up all those plaintiffs made fees of some $2.8 billion. From The Philadelphia Inquirer.

A Threat to the American Political System

Writing in the St. Paul (MN) Pioneer Press on June 2, commentators Edwin Meese III and Paul Rosenzweig said the “outrageously excessive fees” generated by the state tobacco settlement “represent a grave danger to the American political system.” The payouts, capped by the settlement at $250 million a year and expected to run in perpetuity, “transfer the responsibility for determining matters of public policy from Congress and the executive branch – the elected representatives of the people – to a few powerful trial lawyers. These lawyers, with the complicity of creative judges in a few states, routinely create new rights and obligations where none had existed before.” If the trial lawyers can’t change America through the courts, they write, then “they are seeking to buy the Congress they need to enact the agendas they support.”

Send a Rat to Catch a Rat

One of the loudest voices in 1998 calling for the impeachment of then-President Bill Clinton was Rep. Bob Barr (R-Ga.). Easily the loudest voice defending the President was Democratic political hit-man James Carville. Now, some four years later, The Washington Post reports Barr has filed suit in a Washington federal court against Carville (and Hustler publisher Larry Flynt) “seeking compensatory damages ‘in excess of $30 million’ for ‘loss of reputation and emotional distress’ and ‘injury in his person and property.'” We’re not sure who we’d rather see win, but we’re sure about one thing: The judicial system will lose. The lawsuit is being waged by Larry Klayman, head of Judicial Watch, a public interest law firm that has bedeviled Republicans and Democrats alike. From The Washington Post.

How to Discourage Frivolous Government Lawsuits

Robert Levy, the Cato Institute’s senior fellow in constitutional studies, makes a brilliant suggestion in a May 9 Policy Analysis titled “Pistol Whipped: Baseless Lawsuits, Foolish Laws.” After quoting a big-city mayor calling for concurrent lawsuits against gun makers to “bring them to the negotiating table a lot sooner,” Levy observes: “One effective way to stop such thievery is to implement a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case.

In the criminal sphere, defendants are already entitled to court-appointed counsel if needed; they’re also protected by the requirement for proof beyond reasonable doubt and by the Fifth and Sixth Amendments to the Constitution. No corresponding safeguards against abusive public-sector litigation exist in civil cases.” Such a rule would at least slow down the demonization machine that threatens to consume industry after industry. A problem: Where will we find a Congressman courageous enough to stand up to the plaintiff’s bar and introduce such a bill?

Let Her Graduate … Or Else!

Quite a scene unfolded recently in Peoria, Arizona, a suburb of Phoenix, when high school teacher Elizabeth Joice received a letter from attorney Stan Massad claiming her decision to fail a student was “quite unusual and suspect,” and threatening “to institute litigation” if she failed to “correct this situation.” The letter, and Ms. Joice’s eloquent reply (“the student failed to take advantage of the opportunities that were provided to her”) were reprinted in The Arizona Republic on June 11. On June 13, the Arizona State Bar Association announced it is investigating Mr. Massad for legal malpractice. The student, by the way, was allowed to retake a test over her teacher’s objections and graduate with her class. From The Arizona Republic.

Published bi-weekly by The Heartland Institute, a nonprofit 501(c)3 organization founded in 1984. The full text of this two-page newsletter is also available in Adobe Acrobat’s PDF format; click here.
Publisher: Joseph L. Bast
Editors: Diane Carol Bast, Paul Fisher, Dan Hales

Information on lawsuit abuse can be found on these Web sites: