♬ “It’s the Most Warningful Time of the Year” ♪

Christmas Tree warningIn 1963, one of America’s favorite crooners, Andy Williams, released a Christmas song entitled “It’s the Most Wonderful Time of the Year” that would become one of the standards of the holiday season. Little did he know that by the end of the century, the holiday season would also become the most “warningful” time of the year, too.

How so? Most of the gifts Americans will give to each other during the holidays are plastered with warning labels. In fact, there are often so many warnings that they can’t all fit on the product, so something as simple to use as a fountain pen may come with an “instruction manual” filled with warnings. And many of those labels warn us about things that are such common sense they’re downright wacky.

One of my favorites is a label found on the most popular child’s scooter sold in America. If you look closely, right on the handle bar between the grips it says, “Caution, this product moves when used.” Isn’t that the whole point of a scooter?

There is also a snow sled that warns, “Beware: sled may develop high speed under certain snow conditions.” Now, if you give your child a sled that doesn’t develop high speed when it’s used, you know it probably won’t be used much longer.

And then there is the label that was found on a live Christmas tree. It warned: “Not intended for human consumption!” What?! We can all understand the need for a warning like that on some fruitcakes, but on a live Christmas tree?

Consumer products are now loaded with warnings because product makers know that if they don’t provide them, even if the warning is about something that is common sense, they can be sued by someone who may be injured while using their product. Everyone knows that a scooter will move when a child uses it, but in America, companies are being sued even when their product wasn’t defective.

Virtually all lawsuits filed nowadays over injuries involving a consumer product have a common denominator: they claim the manufacturer “failed to warn” the consumer about a potential danger. So, even if the danger is obvious, the warning is now provided.

What many people don’t know is that these common sense, obvious warnings aren’t nearly as common in other parts of the world. As the host of the annual Wacky Warning Label Contest, I have done scores of radio and TV interviews with reporters in Europe and Asia over the years, and the most common question I get is, “Why don’t we see warning labels like this in our country?”

The answer is that the United States is the most lawsuit-happy society on earth, and these common sense warnings are put on our products to avoid lawsuits. The number of tort lawsuits in America dwarfs the number of tort lawsuits filed in any other country in the world when taken as a percentage of the national economic output. In the United States, the amount of the Gross Domestic Product that goes to tort costs is 2.2%. That’s twice what it is in Germany (1.1%) and nearly three times what it is in Japan (.8%). The United Kingdom and France spend even less on tort costs than Japan.

While there is certainly a place for legitimate lawsuits, excessive litigation has become such an everyday part of life in America that many people don’t notice it anymore. And it’s why the holiday season, in addition to being the most wonderful time of the year, is also the most warningful time of the year.

If judges and lawmakers begin telling plaintiff lawyers with regularity that personal responsibility and common sense still have a place in America’s courts, product makers won’t need to keep putting common sense warnings on their products. Until that happens, we’ll continue seeing labels like the one found on a pair of shin pads used by bikers that warns: “Shin pads cannot protect any part of the body they do not cover.”

If you find a hilarious, common sense warning on one of the gifts you receive, send it to us for a chance to win the $1,000 grand prize in our Wacky Warning Label Contest.

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.”

Asbestos Fraud Case Prompts Call To Refocus On America’s Powerful Plaintiffs’ Bar

One of the most basic questions that anyone who is involved in trying to eliminate the scourge of frivolous lawsuits from America must grapple with is this one: What can be done about the tremendous influence the plaintiffs’ bar has wielded over the courts?

There are probably well over one hundred legitimate answers to that question.  However, let’s focus on one answer that I believe is as important as, if not more important than, any of them: reducing the amount of cash that plaintiff lawyers have to “invest” in the litigation machine.

To lessen the chance that you will be the victim of a frivolous lawsuit or — since most Americans aren’t sued – to reduce the likelihood that you will be forced to pay for lawsuit abuse against others through higher prices, etc., we must dramatically reduce the amount of money plaintiff lawyers have at their disposal to “game the system” to make it easier to sue.

Over the past thirty years, plaintiff lawyers have used some of the billions of dollars they have collectively made from their lawsuits to help elect judges, lawmakers and other policymakers who have in turn opened the floodgates to even more litigation in America.  We will never know how much they have spent because not all spending is reported to the government, but let’s look at how much lawyers in just one area of litigation, asbestos, have made.

According to a special report published by the Manhattan Institute’s Center for Legal Policy in 2008, plaintiff lawyers had at that time made $19 billion from lawsuits against companies who made or used asbestos.  Certainly, all of that money didn’t go into hiring expert witness, or even buying lavish homes or Gulfstream airplanes.  A substantial amount was “reinvested” in political campaigns and other ways to influence public policy.  If only 1% of that amount was used to influence the judicial, legislative and executive branches of government, we’re talking about $190 million – from only one segment of the litigation industry!

The staggering amount of money the plaintiff lawyers have to work with was brought to our attention again recently by a news report about two Pittsburgh lawyers who were found liable for fraud in 11 asbestos cases.  According to the Pittsburgh Post-Gazette, a federal jury found the two lawyers and a doctor they had hired to read X-rays to be guilty of fraud in 11 asbestos lawsuits filed against the railroad company, CSX Transportation.  The jury ordered them to repay CSX for the amount of money the company had spent defending itself against those 11 lawsuits, a total of $429,240.

CSX had to sue the attorneys to retrieve that money. Michael Krauss points out at PointOfLaw.com that one of the attorneys who sued CSX, Robert Peirce, had filed more than 14,000 asbestos lawsuits against the company.  The doctor he hired had diagnosed tens of thousands of asbestos claims.  CSX included only 11 of the lawsuits that had been filed against it in its case against the men “likely because of statute of limitations or solvency issues,” said Krauss.

This week, we devoted our weekly radio commentary, “Let’s Be Fair,” to this issue in an effort to focus public attention on the magnitude of the litigation problem facing America as well as the enormous amount of money attorneys take from victims.  Asbestos lawsuits are just the tip of the iceberg.  If two lawyers who tried to defraud one company through asbestos litigation were able to force the company to spend nearly a half of a million dollars on just 11 lawsuits, multiply that amount thousands of times over.

Finally, companies should not be forced to sue lawyers who defraud them in order to recoup the money they have lost as a result of these lawsuits.  The government must do a better job of policing the legal profession.  Lester Brickman, a noted law professor and an expert in asbestos fraud, pins much of the blame for the lax government oversight on the U.S. Department of Justice.  In 2011, he told Congress that “Effectively, what law enforcement agencies have done by their inaction is grant lawyers and the medical personnel they hire a special dispensation to commit fraud on a massive scale in certain mass tort litigation.” A full copy of his remarks to Congress is available at the link above.

It is time for the U.S. Justice Department to crack down on the widespread litigation fraud taking place in America.  Until that happens, the plaintiffs’ bar is going to continue growing and investing more money in new ways to file ever more lawsuits.

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.

When Expectant Mothers Have No Safe Place To Turn

Read the following description of the appalling conditions that expectant mothers have to deal with in one city, and try to guess where it is:

“Once you get to the few remaining hospitals in the city who will do OB/GYN, you better hope there’s a bed open for you.  Otherwise, you might be delivering in the emergency room…because the labor and delivery unit’s full, overflowed…patients in the hall waiting.”

Port-au-Prince, Haiti? Mogadishu, Somalia? Perhaps some other third-world city hit by a natural disaster?

It’s Philadelphia, Pennsylvania.

Unfortunately, this was how one doctor described the situation at the Philadelphia hospital where he now works after years of skyrocketing costs for liability insurance and the constant threat of lawsuits have prompted doctors to leave the state and retire in droves.  Twenty maternity units in the greater Philadelphia region have closed, leaving almost literally “no safe place to have a baby.”  And what of emergency situations, which many women face during pregnancy?

It gets worse.  Much worse.

And whether you live in Pennsylvania or a state like Georgia or Illinois where the courts are overturning medical liability reforms enacted by the legislatures to bring stability to their health care systems, or even if you live in a state where the plaintiff lawyers are just starting to push again for more ways to sue doctors, you need to see and hear this story.

Click here now to see a short video in which mothers and fathers, doctors and midwives and others talk about the deplorable state of health care in one part of Pennsylvania hit hardest by the lawsuit crisis, Philadelphia.

For the past twenty years, I’ve been researching the negative impact that excessive litigation has had on life in America, and this is the most troubling and most unbelievable story I’ve seen.  I’ll have much more on this in the days and weeks ahead.

Georgia Supreme Court Ruling Is Likely To Bring Longer Waits At Doctors’ Offices

It wasn’t a good day Monday for either doctors or their patients in Georgia.  The Georgia Supreme Court struck down a five-year-old law that had been enacted by the state legislature to bring more stability to the health care system.

The Georgia high court ruled that a 2005 law placing a cap of $350,000 on pain and suffering awards in medical liability lawsuits is unconstitutional.  Because of this ruling, Georgia is now one of only 20 states that do not have these caps according to the National Conference of State Legislatures.

In a previous post, I noted that a study by Brigham Young University concluded that doctors spend less time on the job if they practice in a state where it’s easier for them to be sued.  Unfortunately, the decision by the Georgia Supreme yesterday makes it much easier for doctors to be sued for huge verdicts, so when we look at the large picture, patients are as likely to bear the brunt of this ruling as doctors.

Over the past two decades, the majority of states have enacted caps on these hard-to-define pain and suffering awards because reasonable caps have been considered by many experts to be the best way to reverse the trend of runaway jury verdicts.  Enormous jury awards had pushed up the cost of doctors’ liability insurance so high that many doctors had chosen to retire or move to states with more favorable laws.

Most news reports on this decision have failed to point out that even before the Georgia Supreme Court decision, there were NO caps on damages that victims could receive for economic damages that pay for needed medical care and lost wages.

It’s the unlimited non-economic damage awards that have turned many courts into lawsuit lotteries, and that’s why plaintiff lawyers like John Edwards who have gotten rich suing doctors in states that allow unlimited pain and suffering awards are praising this verdict.