[Congressional Record (Bound Edition), Volume 153 (2007), Part 9]
[Senate]
[Pages 12245-12246]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     ABUSIVE LITIGATION IN AMERICA

  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

[[Page 12246]]

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.

                          ____________________