America is a land of second opportunities — even for disgraced, trial-lawyer hacks.
Remember the 1993 side-impact crash fiasco on Dateline NBC? The Los Angeles Times called it “the biggest TV scam since the Quiz Scandals.” Unbeknownst to viewers, model rockets had been attached to the “side-saddle” gas tank of a GM pickup truck and set off by remote control to ensure an explosion during the collision.
Now the man who bragged that he was instrumental in staging the phony explosion has a new cause. As executive director of the Public Health Advocacy Institute (PHAI), Ben Kelley is trying to turn America’s flab into trial lawyers’ next cash cow. PHAI arranged a June conference “intended to encourage and support litigation against the food industry.” On October 16, the Senate held a hearing on legislation that would squelch these obesity lawsuits, but Kelley’s cabal shows no signs of slowing down.
Amazingly, Kelley wrote in a Washington Post op-ed (subsequently picked up by several other major papers) that a model for his Big Food lawsuits “is found in the history of auto safety regulation and litigation.” He’s right, and the parallels are frightening. Aided by Kelley, trial lawyers are once again attempting to manipulate public opinion with a barrage of false images and misrepresentations. Their goal is to influence future jury pools and reap billions in settlements.
Millions of Americans saw NBC’s bogus video of the GM side-impact fireball, but another videotaped explosion was needed for use in court. So Kelley asked his trial-lawyer sponsors to fund a second demonstration, using “a modified design further enhancing the likelihood of a real-world impact resulting in fire.” Videotape of the staged explosion, Kelley wrote, would then be made “available for public dissemination and litigation use.”
NBC President Michael Gartner resigned over the Dateline debacle, but by then it was too late. A jury decided that GM should cough up $105 million in damages, even though the National Highway Traffic Safety Administration showed that the trucks in question were actually safer than the average car on the road.
Ben Kelley was also an on-camera expert in a CBS 60 Minutes segment in which a truck’s wheel rims were filed down — again, viewers were in the dark — to make the phony case that they were prone to explode while the tires were being filled with air. And Kelley appeared in another 60 Minutes piece that implied a Jeep was prone to flip over during “fairly gentle” turns. Guess what? Heavy weights had been hidden in the Jeep’s wheel wells to make it more likely to flip.
Thanks to cooked-up images on network television, trial lawyers expropriated millions from auto companies over phony safety problems. The Dateline episode exposed them with their hand in the cookie jar. But Kelley apparently feels no shame in now applying the same model — a classic disinformation campaign — against restaurants and food manufacturers.
Once again, his biggest obstacle isn’t the law. It’s public opinion. According to a Gallup poll conducted in July, just nine percent of Americans think fast-food restaurants should have to pay for their customers’ lack of self-control.
Trial lawyers recognize as much. Richard Daynard of PHAI notes that “political will is everything.” Tell dramatic stories about the problems of overweight kids, and you can win massive settlements. After all, Daynard observes, “the majority of judges and jurors are also parents.”
Kelley and Daynard, along with gadfly lawyer John Banzhaf, are leading the charge to create a more pliable jury pool. It’s trial by media — Ben Kelley’s specialty.
The publicity stunts include Banzhaf frequently promoting the absurd notion that food, like illicit drugs, is addictive. He sent an open letter to fast-food chains this year, demanding that they post conspicuous warning signs in all their locations. Restaurants, Banzhaf insisted, have a “legal duty to warn” their customers that fast food “can act on the brain the same way as nicotine or heroin.”
Whenever he gets near a camera, Banzhaf insists that “we have won” four obesity-related lawsuits. In fact, trial lawyers have won no such lawsuit (the most recent suit blaming McDonald’s for the obesity of fat children was just tossed out of court). The only reason to invent such a statistic is to plant the idea among potential jurors that these legal expeditions aren’t so silly after all.
Another deception from Kelley and Co. is to reflexively claim that obesity causes 300,000 American deaths each year. The respected New England Journal of Medicine determined that this exaggerated number is “derived from weak [and] incomplete data.”
Peddling phony statistics and absurd claims of addiction might not appear as sensational as staged explosions, but Banzhaf, Daynard, and Kelley only need to confuse juries, not terrify them. And they have only just begun.
— Dan Mindus is a senior analyst at the Center for Consumer Freedom.