The Threat from Attack Attorneys Is No Joke

Article excerpt

MANY OF US have wondered over the years what the difference is between satire and reality in the American legal system. I have the answer: one year, 11 months, and 10 days. Let me explain.

On Aug. 3, 2000, The Onion--America's favorite satirical newspaper--published an article entitled, "Hershey's Ordered to Pay Obese Americans $135 Billion." This piece of comic fiction reported that the chocolate company had been sued by state attorneys general in a class action over the lack of warnings on its product, its marketing of products to children, and its having--most insidiously of all--artificially spiked its products with nuts and crisped rice to keep people addicted. The jury, by this satirical account, had responded by granting an enormous award. "This is a vindication for myself and all chocolate victims," said one of the plaintiffs. In addition, the company was ordered to place a warning on all of its products reading: "The Surgeon General has determined that eating chocolate may lead to being really fat."

Well, on July 24, 2002--less than two years later--the wire services reported that Caesar Barber of the Bronx, N.Y., was filing a lawsuit against McDonald's. (He soon was joined by a number of other plaintiffs suing Wendy's, Burger King, and other fast food chains.) Barber had for years been wandering into McDonald's restaurants, apparently under the impression that they served health food, and had been receiving hamburgers and French fries instead of celery stalks. He had no idea that he could get fat from such products and, sure enough, he developed heart problems and other medical conditions associated with obesity.

Although many of us greeted this lawsuit with incredulity, it was taken quite seriously by some veterans of the tobacco litigation that had succeeded so gloriously a few years earlier. Here is a law professor from George Washington University quoted in Time: "A fast food company like McDonald's may not be responsible for the entire obesity epidemic. But let's say they're five percent responsible. Five percent of 117 billion dollars is still an enormous amount of money." Northeastern University organized a conference on how to sue food makers that was attended by scores of lawyers, one of whom--a recent Rutgers graduate--was quoted as saying: "It's a very important and pressing issue and its outcome will be with us for years to come. I'm hoping to be able to build a career out of this issue." Lawsuits against fast food restaurants also were taken seriously by The New York Times, which defended them as socially beneficial. Its general argument seemed to be: We're not saying these lawsuits should win, but what can they hurt? We used to know the answer to that question. We knew that they could hurt a lot.

In Texas, a woman who found out that her dentist husband was cheating on her ran him over in a Hilton parking lot. We used to see clearly that it would be wrong in such a case to sue Hilton hotels for negligent training of employees-thus for making it too easy for wives to run over their cheating husbands. Yet, that is what happened.

Speaking of parking lots, the proprietor of one in Framingham, Mass., was sued after a thief broke into the lot, stole a car, drove off at high speed, and crashed. Indeed, the family of the thief sued the lot owner for negligently making it too easy to steal the car.

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 the emergency brakes. On the other coast, a woman who lay down on the subway tracks and was hit by a train--police concluded that she had been trying to kill herself--was awarded $14,100,000 by a New York City jury. Not only did we used to know that such lawsuits are wrong--once they would not have been imaginable.

Throughout most of American history, we understood quite clearly that litigation is, for most people, one of the most expensive, unpleasant things that ever can happen to them in their lives. …