In the next issue of California Lawyer magazine I’m quoted as saying that I expect the next target of the tort lawyer establishment to be “Big Caffeine.” I thought maybe I should explain.
The lawsuits against tobacco companies, gun makers, lead paint companies, fast food restaurants, and now automobile makers have largely been based on the theory that these products are “public nuisances” due to their deleterious effects on society. The concept of “public nuisance” is so vague and undefined that no lawyer can actually define it, and generations of legal experts have tried and failed to give it anything like a meaningful definition. This gives the term enormous flexibility. It can then be used as a weapon against any product that has any negative consequences. In tobacco, of course, it was cancer; for the gun makers, violence; for lead paint various ailments, and for cars, global warming.
Once a product is identified that has a negative side effect, the next tactic is to portray its producers as in some sort of league or conspiracy against the public to enrich themselves unscrupulously. This was easy with the tobacco companies, whose leaders did lie or spin things sometimes. Then you sue them in an enormous class action lawsuit with your lead plaintiff carefully chosen to be as sympathetic and vulnerable-looking as possible. In the Philip Morris v. Williams case, now headed for the third time to the U.S. Supreme Court, widow Mayola Williams contends that her husband took up smoking in the 1950s, and although frequently told that it would cause cancer, he believed the tobacco companies’ denial of this fact, and continued smoking till he died. The result was a $72 million punitive damages award.
Most of these massive lawsuits have been “failures” in the sense that the plaintiffs have not received a judgment. The case against McDonald’s for obesity, for example, or the case against the gun makers and lead paint makers—these did not result in final judgments for the plaintiffs. Still, they cost a tremendous amount of money and time, and the incentives to settle for huge lump sum payments are quite strong. That’s certainly what Jerry Brown is hoping for in his lawsuit against General Motors and other car manufacturers—alleging that the making and selling of (perfectly legal) cars is a nuisance because it contributes to global warming.
So what’s the next target? After the tobacco cases, everyone knew the next target would be fast food, and they were right: McDonald’s was sued for contributing to child obesity. So now what?
I think a strong case can be made that the next target is caffeine. Except for alcohol, no drug is now more commonly used, and its effects on the human body are actually quite strong. Very small amounts of it can cause unhealthy effects on the nervous system and the heart. It contributes to anxiety, sleeplessness, and irritability. It has no warning label, and it is everywhere: in Coke and Pepsi, tea and coffee, “energy drinks,” diet pills, and chocolate. (Even decaf has a tremendous amount of caffeine.) Check out the recent statistics on insomnia in the United States: something like a tenth of Americans are said to suffer from insomnia. Does this have nothing to do with the fact that Americans guzzle Cokes and Starbucks at a breathtaking rate? A cup of regular coffee has more than 1/30th of the fatal dose of caffeine.
Now, remove your conscience and think about this the way a self-righteous lawyer with a perverse sense of “responsibility” would: it’s not that a person chooses for himself whether or not to drink caffeine. It’s that he’s manipulated into it by a vast corporate conspiracy that force-feeds him caffeine by hiding its physical effects—and all to enrich evil corporate monsters who use the drug to increase their slaves’ workers’ productivity! Meanwhile, Americans suffer ever increasing amounts of stress and heart disease, increasing the costs of public health programs. Starbucks, like the tobacco companies of old, is poisoning us all to enrich themselves! Caffeine is a public nuisance! We must be saved by a class action lawsuit that will make a few trial lawyers very wealthy and make caffeine more expensive for everyone!
Sounds like a joke, and yet that is exactly what happened in these other cases, and decades before the tobacco companies and fast food restaurants were sued, you would have thought those were ridiculous also. If the lawsuit against General Motors is not a frivolous lawsuit, nothing is, and yet the lead attorney is not some stereotypical ambulance chasing shyster—it’s the attorney general of California, just as the lead attorneys in the lead paint cases were state attorneys general. I see no legal reason why in, say, a decade or so, “Big Caffeine” could not be the next target of the nanny state tort lawyers. Having lost any common sense concept of self-responsibility, the tort law establishment imagines corporations to be diabolical conspirators against the public health whose efforts to cater to our tastes for luxuries are really just sneaky tactics for robbing and pillaging us all. This self-righteousness conveniently covers their predatory self-interested motives.
But there is one social reason why it may not happen: lawyers love coffee—certainly more than they love guns! If the next mass “public nuisance” lawsuit isn’t against purveyors of caffeine, it will either because the legal community has learned some common sense (unlikely) or because the prosecutors themselves couldn’t get through a day without their Peet’s.
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