Fallout From ‘Radioactive’ Torts

A U.S. District Court Judge tossed out a frivolous case against McDonald’s last week, but John Banzhaf, cheerleader-in-chief for fast food lawsuits, was hardly fazed. In fact, Banzhaf sees in the judge’s decision “a roadmap on possible addiction.”

Addiction? To burgers? It sounds bonzo, but Banzhaf is hardly alone. Although no one claims that fast food joints lace their fries with nicotine, tobacco is the apple of many a trial lawyers’ eye — and a model for cashing in on popular products. The general counsel of the American Tort Reform Association argues: “The precedents, the ammo, the missiles are already there and waiting in a silo marked ‘tobacco.’”

Richard Daynard, a key player in the tobacco wars, at first thought lawsuits against fast food companies would fail, but then he had an epiphany. “What persuaded us,” he now says, “was, in a sense, the media. This thing is so radioactive in terms of media attention that cases will bring in other lawyers and bring in other cases.”

In other words, Daynard is counting on a snowball effect. Start the ball rolling downhill, attract a few additional cases, and gather momentum. Eventually, the logic goes, fast food companies will be the subject of so many lawsuits that they’ll throw up the white flag. Legal merits and common sense? Please.

But not all trial lawyers salivate when Ronald McDonald is compared unfavorably to Joe Camel. Jack H. Olender, whom the Washington Post calls the “Dean of D.C. trial lawyers,” says simply “I don’t think it’s illegal.” And Michael Hausfeld, a veteran class-action lawyer who has gone up against several corporations, believes the McDonald’s case “took the law beyond the bounds.” Hausfeld adds that “it was reassuring to see a court respond with a realistic assessment.”

Now Congress may step up to the protect the plate. Congressman Ric Keller (R-FL) introduced a bill yesterday that would stop Banzhaf and his fellow travelers in their tracks. His “Personal Responsibility in Food Consumption Act” would prevent unscrupulous lawyers from suing restaurants over the content of their menus. Mitch McConnell (R-KY), the #2 man in the Senate, also plans to introduce a similar bill.

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