Lawyers drooling/sp/over big fat awards

August 01, 2002|By Jonathan Turley

WASHINGTON -- Leave it to lawyers to combine the two favorite American pastimes: eating and suing. In various states, lawsuits have been filed or are being planned against the fast-food industry. Lawyers who recently received windfalls in fees from tobacco lawsuits are now eyeing fast food as the next opportunity for super-size awards.

With the exception of tobacco, there are few things that kill more people than overeating. Obesity caused more than 300,000 deaths in 2000. That same year, obesity resulted in $117 billion in health care costs.

In the last 10 years, obesity rates in the United States have increased 60 percent, and states such as Iowa have populations with more than 20 percent obesity. Those figures are enough to make the most restrained personal injury lawyer salivate like Pavlov's dog.

Lawyers tend to hunt in packs, and the fast-food industry has begun to look like that slow, stumbling member of the herd -- ripe for culling. Lawyers are now probing the fast-food industry in at least six different areas for potential liability.

Some theories have proved fast and easy kills. Various Hindus, Sikhs, Jews and vegetarians recently sued McDonald's over its use of animal fats in its french fries. This resulted in a relatively easy legal settlement for $12 million, including $2.5 million in legal fees, without a trial. Additional lawsuits are now being planned.

Lawyers, however, are looking for much bigger returns in linking fast food to widespread deaths and injuries in the same fashion as tobacco. This effort was given a boost recently by studies linking french fries and other potato products to cancer.

It appears that a large serving of McDonald's fries includes 72 micrograms of acrylamide, a probable cancer-causing compound that the Environmental Protection Agency limits to 0.12 micrograms in an 8-ounce glass of water. While these studies are in their early stages, they put fast-food companies on notice and, if confirmed later, could result in liability.

Other possible theories may target advertising campaigns, particularly those directed at families. As a father of three boys under 4, I can attest to the almost hypnotic effect of the Happy Meal. There is hardly a need for a surgeon general's warning. I realize I am buying concentrated fat and acrylamides in a box, but they come with toys.

I am left with a choice of long-term cancer and obesity risks on the one hand and, on the other, the immediate benefit of strapping three children into restraints and rendering them semiconscious in a fat- and toy-induced trance. On some Saturdays, I would pry McNuggets from the cold, dead fingers of Ronald McDonald, if necessary.

It is precisely the success of these campaigns that may attract lawyers under either product liability theories or consumer protection statutes.

To the extent that these meals are not as wholesome as advertised, fast-food businesses are vulnerable to allegations of misrepresentation, fraud and negligence.

Lawyers are not the only ones who could benefit from targeting the fast-food industry. Politicians have already staked out their possible share in "fighting the fat."

Various states are considering adding "sin taxes" on junk food to make citizens better aware of their dangers. This idea would also add billions in new taxes for legislatures that spent their way back into debt in the last few years.

Legislators have long relied on the profits of "sin." Such taxes on cigarettes make the federal and state governments the greatest beneficiaries of smoking. The tobacco settlements resulted in huge amounts of money going to the states, which led to a frenzy of spending. With this money gone, a new taxable sin would be most welcome.

Lawyers also will find an eager ally among nutritionists and dietitians who view dining out a bit differently from the rest of us.

Whereas a plate of fettuccine Alfredo is generally seen as a Northern Italian delight, experts have labeled it "a heart attack on a plate." Whereas most of us view a Starbucks white chocolate mocha as a refreshing afternoon pick-me-up, its 600-calorie load has been described as "drinking a Big Mac."

Of course, there remain some significant hurdles to holding the Cheesecake Factory liable for the fact that you ordered a slice of its carrot cake with more than 1,500 calories and enough fat to lubricate an infantry fighting vehicle. Our society is saturated by fats, and it is hard to isolate a single source.

Moreover, obesity has various potential causes, and the connection between repeated "Big Mac attacks" and one heart attack is difficult to establish.

Finally, there is the question of personal responsibility, which seems often ignored in these massive lawsuits. We may soon see campaigns from the industry reminding us that "Twinkies don't kill people, people kill people."

Nevertheless, the idea of slimming down through litigation has a curious appeal today. Increasingly, we look to litigation to address our irresistible impulses and to correct our personal choices. Who cares if some lawyers get fatter if we get skinnier.

In some ways, it is a relief. I have informed my wife that my recent weight gain is nothing less than a long-term investment. As a potential plaintiff, I could well be eating myself into prosperity; carrying the kids' college fund around my midsection, safe from stock market fluctuations. Who needs Jenny Craig when you can have Johnnie Cochran?

It may be the ultimate American diet plan brought to you by your friends at the American Bar Association.

Jonathan Turley is a law professor at George Washington University.

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