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Jewish World Review Nov. 27, 2002 / 22 Kislev, 5763

David Limbaugh

David Limbaugh
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Consumer Reports

Robust litigation unleashes inner morons | I vividly remember my Torts professor, in his endearingly derisive way, condemning one of my freshman law school classmates who asked whether a certain injured party could file suit against a person who may have contributed to his injury.

"Anyone can file a lawsuit against anyone else ('you idiot' -- this part was implied, but unspoken), the question is whether the plaintiff can make a submissible case." That is, no one can keep you from filing a frivolous suit; the issue is whether the case will have sufficient merit to survive the Defendant's Motion to Dismiss or Motion for Summary Judgment and get you to the jury.

Boy, is my professor being vindicated in spades these days. Just look at all the crazy lawsuits being filed. But none beats the one filed against McDonald's by 5-foot-6-inch, 270-pound Jazlyn Bradley and 4-foot-10-inch, 170-pound Ashley Pelman because of its billion dollar ad campaign encouraging them to find their "inner glutton."

When you stop laughing, realize that that is how their lawyer explained the suit, adding, "Young individuals are not in a position to make a choice after the onslaught of advertising and promotions."

No suit, it seems, is absurd enough to be laughed out of court. Even when some ridiculous suits are dismissed, their instigators are not receiving their fair share of blame or shame for filing them.

There's a reason for this. Our society eschews individual responsibility and accountability. Many liberals don't champion America as a land of opportunity but a nation of inequity (and iniquity) because it fails to guarantee an equality of results. So I'm not holding my breath for the most recent lawsuit against McDonald's to be dismissed, though I hope I'm proven wrong.

But this latest suit against McDonald's shows that we can always count on the ingenuity of America's trial lawyers to stay ahead of the courts' perspicacity in recognizing ludicrous lawsuits for what they are. Several months ago, I wrote about a lawsuit by some portly gentleman against a handful of fast food factories who had enticed his inner porker out of the closet. That case hasn't gone anywhere, hopefully because the court acknowledges that the adult plaintiff in that case ought to have some control over his inner fatso.

Undeterred, the resourceful trial bar, with this new case, has devised a way around the obvious defense that gluttons should be held responsible for the consequences of their own voraciousness. But guess who won't be barred from recovery based on their culpability in over-ingesting? That's right. Adolescent gluttons. John Banzhaf, the law professor who likely inspired the suit, shamelessly admitted as much in an e-mail explaining the "tactic" of using children as plaintiffs.

This "tactic," said Banzhaf, "avoids the major argument that plaintiffs are supposedly responsible for their own actions, since one can hardly blame youngsters who are lured into McDonald's by playgrounds, gotta-have toys in Happy Meals, birthday parties, etc."

If anyone still thinks this is about helping injured individuals, he needs another low fat, low carb brewskie -- a fine source of protein, according to those beer distributors playing to our inner winos. These lipid-leaching litigators will trade in their plaintiffs for better models for a single donut. They are just looking at ways to make money and punish corporations in the meantime.

Anyone too stupid or irresponsible to know that Big Macs, fries and shakes are disfavored by the American Heart Association and American Cancer Society are probably not competent to bring suit against anyone -- even through their parents. How can anyone with at least three of his five senses, including smell and taste, be unaware of fast food's faithfully fattening festive features?

If our legal system and culture permit the proliferation of these types of lawsuits, we ought to consider a class action against grandmothers everywhere. Have you ever met a grandmother whose primary aim in life was other than to gorge her grandchildren on high-fat food? (We're not just talking three squares, but 'round-the-clock satiation. No one's inner glutton is safe from grandma's apple pie a la mode.)

Or better yet, perhaps instead we should all break into discussion groups to contemplate how our inner morons escaped and took hold of our once sane and stable society.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.