Lawsuit Abuse Fortnightly #5-3

Published February 23, 2006

Wanted: Massachusetts Fat Kids

Several Massachusetts lawyers plan to file lawsuits against Coca-Cola and PepsiCo seeking to ban sales of soft drinks in school vending machines. But they’re having a hard time finding a “plump plaintiff,” as Walter Olson puts it in the Los Angeles Times, despite advertisements for potential plaintiffs in local newspapers. The suit would allege consumer fraud.

Stephen Gardner, an attorney with the Center for Science in the Public Interest, supports the suit on the grounds that consumption of soft drinks in schools contributes to childhood obesity. The American Beverage Association, however, funded a study that shows students purchase only one sugary soda per week at school. Susan K. Neely, president of the association, told the New York Times, “This study confirms what previous studies have shown: that consumption of full-calorie sodas purchased from school vending machines during normal school hours is a very minor source of calories in the diets of American youth.”

If the Massachusetts lawsuit is filed and succeeds, soft drink manufacturers would be required to pay $25 for every beverage purchased by students over the past four years. Gardner recognizes damages could amount to billions of dollars, but says they have not decided whether to seek this remedy. “We haven’t decided about this yet,” he told the New York Times. “We don’t want this to come off looking like a greedy-lawyer lawsuit.” Too late, we think. From the New York Times and the Los Angeles Times.

Never Mind: Bring on the Lard

The prospects for successful class-action lawsuits against foods with high fat content fell with the release of new research on the health effects of a low-fat diet.

A $415 million series of federal studies–described by the director of epidemiological research for the American Cancer Society as the “Rolls-Royce of studies”–establishes that a low-fat diet does not prevent heart attacks, strokes, or colon cancer.

“These studies are revolutionary,” Dr. Jules Hirsch, physician in chief emeritus at Rockefeller University in New York City, told the New York Times. “They should put a stop to this era of thinking that we have all the information we need to change the whole national diet and make everybody healthy.”

The studies were conducted by the Women’s Health Initiative of the National Institutes of Health and followed 49,000 women ages 50 to 79. Those following a low-fat diet were barred from eating butter, cream cheese, and salad dressings with oil, among other things. The results were published in the Journal of the American Medical Association.

Physicians have long recommended low-fat diets for persons deemed at risk for heart attacks, strokes, or colon cancer. But David A. Freedman, a statistician at the University of California, Berkeley, who has written extensively on the reliability of clinical studies, told the New York Times the Women’s Health Initiative studies were “well designed” and the results were reliable and should be taken seriously. “We, in the scientific community, often give strong advice based on flimsy evidence,” he told the New York Times. “But the diet studied here turned out not to be protective after all.” From the New York Times.

Wacky Warning Labels

Warning labels are one sign of out-of-control litigation, so we report with interest the winners of the Michigan Lawsuit Abuse Watch’s ninth annual “wacky warning label” contest.

The warning label on a heat gun used for removing paint won first prize. The label reads: “Do not use this tool as a hair dryer.”

Honorable mention went to the label on a bottle of dried bobcat urine–used to repel pests from garden vegetation–which states: “Not for human consumption.” Another honorable mention went to the label on a baking pan: “Ovenware will get hot when used in an oven.”

The Washington Examiner notes past M-LAW wacky label winners include a warning on an electric carpenter’s drill that states: “this product not intended for use as a dental drill.”

The Examiner notes: “It is easy to laugh at such goofy warnings, but it’s a mistake to think that they’re dreamed up by goofy people. They’re written by business people who can no longer predict what the law expects or requires of them. These warnings are another measure of how far plaintiff lawyers have gone in dreaming up frivolous pretexts for lawsuits. … The lunacy is not in the warnings listed above but in the epidemic of abusive lawsuits that drives otherwise reasonable people to issue them.” From Michigan Lawsuit Abuse Watch at and the Washington Examiner.

“No More Teachers’ Dirty Looks”

A Milwaukee student and his father filed suit against the student’s school for assigning homework over the summer for an honors math class for which the student volunteered. The plaintiffs argued the assignment was burdensome because it would take several days to complete and violated state law and the U.S. Constitution. Judge Richard J. Sankovitz found no merit in the suit.

The plaintiffs argued that because a state law provides the “school term” cannot begin until September 1, the school was not authorized to assign summer homework. The judge observed the words “school term” are defined under state law and operate only as a limitation on the days upon which schools are required to be open for attendance. Since the homework assignment did not require the student to be present at school, the judge ruled this statute did not bar the homework assignment.

The judge also made short shrift of the plaintiffs’ claim the homework assignment violated “the fundamental right of parents to make decisions concerning the care, custody, and control of their children” under the due process clause in the U.S. Constitution. Noting the student signed up for the course voluntarily, the judge wrote: “Being free from pencils, books and teachers’ dirty looks simply doesn’t implicate the same constitutional concern” as such matters as the choice of public, private, or home schooling or removing a child from his or her parents without clear and compelling evidence of abuse. From and Larson v. Burmaster, Case No. 05CV000159.

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984.
Phone 312/377-4000, fax 312/377-5000
Back issues are available online at
Publisher: Joseph L. Bast
Editors: Maureen Martin, Diane Carol Bast

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