The Sticky Legalisms of Wacky Warning Labels

Washington Times 2015 op-edThis op-ed article by the author of “Let’s Be Fair” appeared in the Washington Times on July 3, 2015.

Not too long ago, common sense ruled the day, so called because it was shared by nearly everybody. Common values, commonly understood sense of right and wrong, just and unjust, all expressed in a common language of fairness.

But what’s happened to common sense in America? Our laws, as expressed in opinions by our courts, seem disconnected from the common sense that defined our experience.

Take a look at any of the five labels that have just been named finalists in our 18th annual Wacky Warning Labels™ Contest.

There’s a warning on a ceiling-mounted smoke alarm that actually says: “Silence feature is intended to temporarily silence the horn while you identify and correct the problem…It will not extinguish a fire.” Really? Someone needs to be told that pushing a button on a device smaller than most cereal bowls won’t put out a fire?

Or take the warning label someone found on a one-inch-tall water-absorbent grow toy that looks like the Easter Bunny. To the amusement of kids across America, it expands when you place it in water. However, read the fine print on the packaging, and you’ll find a warning that says, “This toy is in no way intended to represent living people. Any resemblance is purely coincidental and not intended to harm anyone.” Evidently, someone wasn’t amused by the appearance of the toy.

Countless products are plastered with common sense warning labels today because lawyers have advised product makers that if they don’t provide the warnings, they could be sued. It’s why a popular four-inch-long brass fishing lure with sharp hooks dangling off the end now warns: “Harmful if swallowed.”

That warning was one of our past winners. The owner of the family-run business that made these fishing lures for nearly one hundred years without needing to put that warning on its products told us that they finally decided to provide that warning on the advice of a lawyer. They were informed they could be sued under California’s Proposition 65 law that requires labels on products that contain certain chemicals even though no one in their right mind would try to swallow a fishing lure. Prop 65 has been a bonanza for plaintiff lawyers, but according to experts in the field, there isn’t a single empirical study demonstrating any public-health benefits of Prop 65.

While the fear of being sued over risks that are common sense is relatively new in the long history of our country, reformers have been calling for more common sense in public policy for centuries. In fact, as we prepare to celebrate Independence Day, it’s worth noting that several months before the Declaration of Independence was written in Philadelphia, Thomas Paine published a pamphlet called Common Sense.

Thomas Paine’s pamphlet helped spark the American Revolution by encouraging colonists to rethink the rules by which they were living, and today, it holds lessons about the importance of rethinking the rules of a civil justice system that forces law-abiding product makers to worry about being sued if someone misuses their product.

In the opening paragraph of Common Sense, Paine wrote that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.” In today’s language, what Paine was saying is that it’s easy lose sight of how wrong something is when it becomes an everyday part of one’s life.

Excessive litigation has become such an everyday part of life in America that many people don’t question it anymore. However, these wacky warning labels – which aren’t found in other countries, by the way – should themselves be a warning that it’s time for us to change old lawsuit habits that haven’t served us well. Judges and lawmakers need to tell plaintiff lawyers that personal responsibility and common sense still have a place in America’s courts. When that happens, we won’t need labels like the one found this year on a bag of frozen catfish pieces that warns: “Contains fish.”

Starbucks Gets Served With A McDonald’s-Style Hot Beverage Lawsuit

If there’s one lawsuit everyone in America has heard about, it’s the infamous lawsuit filed against McDonalds over a cup of coffee that Stella Liebeck spilled in her lap.  Years later, countless Americans still bemoan the fact that they can’t get a cup of coffee that is hot enough for their liking because of Stella.

The fear of serving drinks as hot as their patrons prefer is only one of the side effects of the lawsuit that became the poster child for lawsuit abuse.

Unfortunately, it has also inspired many copycat lawsuits over the years.  I have personally talked to many owners of “mom and pop” restaurants who were put through the legal wringer by patrons who spilled hot drinks on themselves and who hoped to cash in on their own clumsiness in the courts.

The latest example of someone trying to hit the lawsuit lottery over a hot drink seems to be a lawsuit filed against Starbucks over a spilled cup of tea.  Read about it here.

I say that this lawsuit seems to be another case of someone willing to overlook personal responsibility so they can file a lawsuit because there haven’t been enough facts made available yet to know what really happened in this case.  However, we’ll be sure to follow this and let you know.  Short of a Starbucks employee actually throwing scalding tea onto a patron, we’re very likely looking at a copycat.

Having debated Harvard law professors and other plaintiff lawyers about the widespread lawsuit problem in America, I am always very careful to make sure I have all the facts right.  Personal injury lawyers love to try to make it appear that McDonald’s was liable for Stella’s self-inflicted injury because of claims that the company had been warned about the temperature of its coffee.   They even have websites devoted to this lawsuit.

I have just one thing to say about their assertion that McDonald’s was responsible: “Nonsense!”

Ted Frank gave the best explanation I’ve ever seen of why “the case is ludicrous on its face, as a matter of law, and as a matter of common sense.”  Click here to read how he picked apart the plaintiff lawyers’ case on Overlawyered.com.

These lawsuits always cost the businesses tens of thousands, if not hundreds of thousands, of dollars to defend against…regardless of whether they win or lose.  I’ve spoken with some of the fine people who were on the receiving end of these lawsuits after they went out of business, and their stories are always heartbreaking.

Special feature:  Ever wondered about Stella Liebeck?  Click here to view a FOX News segment that includes rare footage of her explaining how she spilled the coffee on herself.  It also includes Yours Truly explaining how her ridiculous lawsuit led to a surge in common sense warning labels in America.

Threat Of Lawsuit Over Lost Coat Is Latest Example Of Destructive “Sue First, Ask Questions Later” Mentality

Have you heard about the Houston lawyer who is threatening to file a lawsuit over a leather coat he lost at the Houston airport?  This story will have a lot of people seeing red because of the sheer gall of this guy.

According to reports, William Ogletree lost his $800 black leather coat after leaving it at a fast-food restaurant at the airport.  Now, he wants the city of Houston, Continental Airlines, and a company that manages the food court to find it and give it to him pronto, or he’ll SUE!  After a little digging, I discovered that Mr. Oglegree runs a personal injury law firm in Houston.

I’d like to point out that Ogletree has apparently lost something else, too: his sense of shame.

Aside from the fact that he claims no responsibility for losing the coat, Ogletree has provided no evidence that any of these entities even has his precious leather coat.  That didn’t stop him from firing off a letter threatening to sue them within ten days if they don’t produce the coat, “made by Polo, size X-large and had a plaid lining.”

Of course, this is an X-large example of why personal injury lawyers have earned such a bad name these days.  All too often, they ignore personal responsibility and threaten to use the courts as a weapon to achieve whatever they want.

Coincidentally, this “sue first, ask questions later mentality” is the topic of my radio commentary this week.  Please check it out by clicking on the link at right.  Over the next couple of weeks, we’ll address how disputes like this can be resolved so much more efficiently, and amicably, than in court.