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Public Statements

Abusive Litigation in America

Floor Speech

Location: Washington, DC

ABUSIVE LITIGATION IN AMERICA -- (Senate - May 11, 2007)

Mr. McCONNELL. Mr. President, I rise today to speak about abusive litigation in America. Unfortunately, many personal injury lawyers' insatiable appetites for a big payday by any theory imaginable are never satisfied, and so I come yet again to speak about tort reform--an issue I have worked on nearly every year that I have been in the Senate.

Earlier this week, as part of an ongoing effort to bring much-needed reform to our civil-justice system, I reintroduced the Commonsense Consumption Act with Senators Pryor, Graham, Baucus, Cornyn, Lincoln, Alexander, Dole, and Bunning.

When I first introduced the Commonsense Consumption Act in July of 2003, the effort by some unscrupulous personal injury lawyers to target food manufacturers and sellers was only beginning to take shape.

In fact, I noted at that time an article in the satirical newspaper ``The Onion.'' This newspaper had gotten a big laugh through a spoof article entitled ``Hershey's Ordered to Pay Obese Americans $135 Billion.''

The article poked fun at the worst excesses of plaintiff's attorneys, describing a class-action suit that accused the candy company of ``knowingly and willfully marketing rich, fatty candy bars, containing chocolate and other ingredients of negligible nutritional value.''

That spoof was published in August of 2000. But almost 7 years later, farce has become reality.

Frivolous lawsuits against the food industry are moving forward on a number of different fronts and a growing cadre of academics, overzealous public health advocates, and of course, personal injury lawyers, are forthright about their intentions to make food manufacturers and sellers the victims of their next huge payday.

One of the more prominent members of the movement to sue the food industry is John Banzhaf, a personal injury attorney and a professor. Banzhaf appears often in the media to discuss strategies for suing food producers and sellers.

In one appearance, Banzhaf told an interviewer in regard to obesity lawsuits:

[Y]ou may not like it ..... but we'll find a judge. And then we'll find a jury.

During another interview, Banzhaf proclaimed:

..... we're going to sue them and sue them and sue them, and I think ultimately, as with tobacco, we're going to win.

The comparison of this litigation to the tobacco suits is apt, because trial attorneys are eager to find another industry to bear the burden of inflating their bank accounts. As Banzhaf told National Public Radio:

..... when we proposed that the states would sue for the cost of health care for lung cancer, heart attack and so on, people thought the lawyers bringing those suits were crazy. They called them crazy. Today, we call them something else. We call them multimillionaires, because, as you know, they won over $250 billion.

Indeed, a great deal of time and energy is being invested into strategies to transfer huge sums from the food industry to overeating plaintiffs and, more to the point, their exceedingly active lawyers.

But these lawsuits are not only about money. They also represent attempts by a small group of lawyers and special-interest groups to subvert the legislative process and impose by litigation what they cannot achieve at the ballot box. In 1999, Robert Reich, former Secretary of Labor under President Bill Clinton, said that, ``The era of big government may be over, but the era of regulation by litigation has just begun.''

Last November, a group calling itself the Public Health Advocacy Institute held its fourth annual conference regarding obesity litigation.

This is the same Public Health Advocacy Institute whose 2004 Conference featured a memorable overhead projection display proclaiming ``Patience, hell. Let's sue somebody.'' And these groups will sue, and they will sue, and they will sue, until they have imposed their special-interest policy preferences on the rest of America.

This kind of reckless litigation cannot be allowed to continue. A Gallup poll found that 89 percent of Americans oppose holding the food industry legally responsible for the diet-related health problems of people who choose to eat fast-food on a regular basis.

The economic repercussions of this sort of frivolous litigation are very real. In fact, the food industry is one of the most important engines for our Nation's economy. The food retail sector of the industry is America's largest private-sector employer, providing jobs and livelihoods for more than 12 million Americans. Estimates suggest that the food industry is responsible for 4 percent of the United States GDP.

Nor is this an industry dominated by a small number of large market participants. Numerous mom-and-pop grocery stores, family-owned and operated restaurants, specialty producers, and other small businesses will find themselves in the crosshairs of the personal injury lawyers trying to cash in on obesity-related lawsuits.

Wayne Reaves, an entrepreneur who operates seven quick-service restaurants in the Northern Alabama region, testified before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts on the dangers that obesity lawsuits pose for small businesses. Mr. Reaves gave compelling testimony about the catastrophic effects that such a lawsuit could have on him and his 196 employees. He then noted an even more insidious cost of obesity lawsuits:

But beyond the costs of defending a potential suit and the risks to my business that go along with it, there are other significant and detrimental effects. For instance, the mere threat of such a suit can have a direct impact on the cost of insuring my business. Insurance companies have acknowledged that they are watching these lawsuits very closely, and they recognize that this litigation is very much a factor in how they may price future liability products for food companies.

Mr. Reaves' testimony is especially important, because it highlights the fact that much more is at stake in the obesity lawsuit debate than the transfer of huge monetary sums from businesses to wealthy trial lawyers. If the mere threat of these lawsuits is not removed, then economic ripples will negatively impact every sector of the food industry. Even the ordinary consumer will feel this impact in the form of higher retail prices.

These lawsuits may even have the perverse effect of exacerbating the problems of overweight Americans. By trying to assign responsibility for overeating to food producers and sellers, the obesity lawsuit movement may be actively discouraging the kind of personal responsibility needed for Americans to develop healthier eating habits.

Let me be clear: This bill is not intended to minimize the problem of overeating. In fact, overweight Americans need to design healthier lifestyles for themselves and their children. America is blessed with an abundant, affordable food supply and an overwhelming number of food choices. With so many food choices, some of us overdo it.

That overindulgence, combined with an underindulgence of exercise, can have negative health consequences. But most of us take responsibility for the amount and the type of food we put in our mouth, and we accept the consequences of these decisions.

Unfortunately, some personal injury lawyers are now trying to convince Americans with expanding waistlines that someone else is to blame for their weight problem. This is precisely the wrong message to send to Americans who may be struggling with their weight.

Dr. Gerard J. Musante is an adjunct professor at Duke University and founder of Structure House, a well-known and highly respected residential weight loss center in Durham, North Carolina. Dr. Musante has testified before a Senate Judiciary subcommittee that he was concerned about the message sent to overweight Americans by litigation related to obesity.

Dr. Musante's viewpoint on this issue is worth our full attention. Specifically, he testified that:

Lawsuits are pointing fingers at the food industry in an attempt to curb the nation's obesity epidemic. These lawsuits do nothing but enable consumers to feel powerless in a battle for maintaining one's own personal health. The truth is, we as consumers have control over the food choices we make, and we must issue our better judgment when making these decisions. Negative lifestyle choices cause obesity, not a trip to the fast food restaurant or a cookie high in trans fat. Certainly we live in a litigious society. Our understanding of psychological issues tells us that when people feel frustrated and powerless, they lash out and seek reasons for their perceived failure. They feel the victim and look for the deep pockets to pay. Unfortunately, this has become part of our culture, but the issue is far too comprehensive to lay blame on any single food marketer or manufacturer. These industries should not be demonized for providing goods and services demanded by our society.

Dr. Musante is absolutely right, and this bill is designed to ensure that an individual's eating habits do not become the province of our already overcrowded judicial system.

The bill is narrowly tailored to apply only to frivolous lawsuits seeking to shift responsibility for unhealthy lifestyle choices. It acknowledges that weight gain and its consequences have numerous interrelated causes, including genetic factors, physical activity, and other lifestyle choices unrelated to consumption of food manufactured or sold by a specific restaurant or corner store.

It is not intended to limit a plaintiff's ability to pursue legal action against food manufacturers or sellers who are found to be engaged in wrongdoing. In fact, let me be clear about what this bill will not do:

It would not affect lawsuits against food manufacturers or sellers that knowingly and willfully violate Federal or State statutes applicable to the manufacture or sale of food. This means that suits based on knowing misrepresentations regarding nutritional information or other statements would not be precluded by this bill.

It would not apply to lawsuits for breach of contract or express warranty.

It would not apply to claims relating to ``adulterated'' food or provide immunity to restaurants that improperly store, handle, or prepare food leading to an illness.

It would not apply to claims stemming from the use of dietary supplements.

In short, it will not provide widespread legal immunity for the food industry. It only provides protection from abusive lawsuits by people seeking to blame someone else for their poor eating habits.

I should mention that in the 109th Congress, the House voted on similar legislation. That bill, entitled the ``Personal Responsibility in Food Consumption Act,'' passed the House on October 19, 2005, by the overwhelming margin of 306-120.

In our overly litigious society, this bill delivers an important message about personal responsibility. Americans have the freedom to make choices about the food they want to eat, and those choices cannot be litigated away. Frivolous lawsuits are not a substitute for the considered judgment of legislatures and regulatory agencies about the best ways to encourage healthy lifestyles that include a proper diet and exercise.

I hope my colleagues will join me in taking an important step to preserve common sense in the judicial system.

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