CHICAGO (Legal Newsline)-Timothy Sandefur has a theory. When California Lawyer magazine asked him what product or industry would face the next major tort lawsuit, he replied with two words: Big Caffeine.
"When I said that the reporter laughed," said Sandefur, a senior staff attorney at the Pacific Legal Foundation, a Sacramento, Calif.-based public interest organization that favors limited government and aims to protect individual and property rights.
"It's like the weather, you really can't tell what's going to happen; but the caffeine idea is not beyond the realm of imagination," he told Legal Newsline. "It's a product that, just like tobacco, can be portrayed as some kind of diabolical thing being used against innocent people by wealthy corporations."
Sandefur said caffeine's image can be "manipulated and abused" to suit individual needs.
"If you said in 1970 or 1980, that people are going to bring enormous lawsuits against tobacco companies, accuse them of fooling people into smoking cigarettes and then use that as a pretext to take a lot of money from them to run government programs, people would have laughed at you," he said. "They would have said 'of course, people choose, as a matter of their own decision-making, whether or not to smoke'. Nonetheless the lawsuits happened; and I think caffeine is a plausible new target."
Sandefur cites litigation against gun makers, lead paint companies and fast food restaurants as examples in which plaintiff's attorneys were more interested in lining their pockets with cash than improving public health and safety.
He is currently working on a lawsuit brought against General Motors Corp. and other major car manufacturers by California Attorney General Jerry Brown.
The lawsuit alleges that the companies' products are a public nuisance because vehicle carbon dioxide emissions contribute to global warming.
Sandefur called Brown's lawsuit an example of yet another baseless lawsuit geared towards making money. But not everyone shares Sandefur's pessimistic take on the state of tort law in the United States.
"There are some frivolous lawsuits that are brought to the court in this country, but we are not suffering from a wave of them," said James Speta, a professor at Northwestern University's School of Law.
"In the main, the courts do a very good job of sorting out what lawsuits are frivolous and what lawsuits are meritorious. And as a whole, plaintiff's lawyers don't get paid unless they win or settle a case; so I think most of them tend to be very selective about the types of cases they bring to the court," Speta said.
In the case of caffeine, Sandefur said it could easily be seen as a public nuisance due to its potential to contribute to health problems like anxiety and insomnia.
"There's no question that caffeine is bad for you," he said. "I think it's Dr. Dean Edell [a syndicated radio host] who says that if caffeine came as a white powder, it would be illegal. Everybody likes it and everybody chooses whether or not to drink it. But it's also ubiquitous and lots of people make a lot of money from it. So there's no reason why an opportunistic plaintiff wouldn't abuse the court system to make lots of money by suing Starbucks."
Even if a consumer is attempting to take advantage of a company, one cannot assume that the case will breeze through the court system; ending with a ruling in the plaintiff's favor.
Although some frivolous lawsuits make it to the courtroom, Speta said it is unwise to presume that the case will be a moneymaker for the plaintiff and their attorneys.
"The crux of cases that tend to be successful are allegations that a manufacturer engaged in deliberate deception or in an outright failure to warn about harmful side effects that they knew about," Speta said. "There are a number of cases in which those allegations have been proved or were serious enough to result in a settlement. As to public nuisance, with very few exceptions, the courts have not accepted public nuisance theories where there is an allegation that a product is harmful."
An example of this can be found in last month's decision by the Rhode Island Supreme Court.
The Ocean State's highest court overturned a ruling that forced three paint manufacturers to pay for the cleanup of lead-contaminated homes, which would have cost the companies billions of dollars. Both Speta and Sandefur think the ruling was the right decision.
"The Rhode Island court came out with what I thought was a really good opinion," Speta said. "That state, and several others, said 'We have product liability law and if you want to allege that a product is dangerous, you use product liability law. You don't use these very broad public nuisance theories.'"
Even though the Rhode Island case illustrates the court system's ability to rule against plaintiffs in tort cases, Sandefur said a problem still exists; and it lies with attorneys trying to get rich while using the public's interest as a platform.
If caffeine isn't the next target, he said, video games or some other common product will be demonized and turned into public enemy number one; eventually leading to a lawsuit against manufacturers.
But before tort law is ridiculed and thrown out to the dogs, Speta said it's important to think of not only its function, but also what would happen if people were unable to file such lawsuits.
"In the U.S. we have a big court system and a long history of using court litigation to address problems of injuries," Speta said.
"One can imagine a system in which we use tort law less, but those systems generally rely on a lot more regulation. In this country, we generally don't require people to go to the government to get permission to sell a new product. When that decision was made, there became a need for a body to decide what happens when someone gets injured by a product. The decision was made to turn to the court and torts to resolve those issues."
Speta said the organization Sandefur works for, the Pacific Legal Foundation, "wants to cut down on tort litigation without providing another way to address the propensity for which a product causes injury."
He added, "I don't think people talk much about or appreciate the trade-off between regulation and tort."