Wednesday, February 01, 2006

Attorney Who Helped Start Smoking Litigation Threatens Lawsuits Against School Boards Over Coke Machines

According to an email released today, an attorney who helped start a campaign "to use legal action as a weapon against the public health problem of smoking" has apparently threatened school boards and their members with lawsuits in order to try to scare them into thinking that they will be held liable for providing soft drinks to children in their schools, and to therefore change their behavior with regard to provision of these soft drinks.

The email, which was apparently sent to school boards and school board members (this is based on the "TO" line of the email - there is no indication of exactly who the email was sent to), threatens these individuals and organizations by stating that they may be sued and potentially held liable for providing Coke, Pepsi, and other soft drinks to students, in light of the "evidence" that the availability of soft drinks at schools is a major cause of obesity.

The email states: "Although current plans do not call for school boards or school board members to be included as named parties in the initial round of law suits, it is clear that school boards, and probably individual school board members, will nevertheless become involved in several ways. For example, even if they are never brought in as parties in the law suits, their unique role in the arrangements attacked by the law suits brought against bottlers will inevitably involve them as targets of pre-trial discovery seeking documents and their testimony under oath, requiring their testimony at any trials, their involvement in settlement discussions, and possibly -- if sought by the bottlers in actions for third-party contributions [i.e., to share in the legal liability] -- to pay any penalties for alleged breach of contract and/or other damages."

"For more serious is the real possibility that school boards -- and possibly even individual school board members -- will become involved as named parties to these law suits. the result of pre-trial discovery of previously unknown facts -- e.g., secret memos or minutes of school board meetings, "wining and dining" of school board members or other benefits to them, etc. -- the pleading by the initial plaintiffs could be amended to include new parties such as school board members."

"School boards -- and in some cases even individual school board members -- could be sued and potentially held liable under a variety of legal theories ("causes of action"). ... School boards -- and perhaps even individual school board members -- could be sued for breaching their duty to protect the students who attend the school. It could be alleged that, in view of the overwhelming body of scientific and medical evidence that the availability of sugary soft drinks at schools is a major factor in causing obesity -- not only because of the unnecessary calories actually consumed in school, but also by the impact such at-school consumption has on children's eating and drinking habits outside of the school venue -- the school board was negligent (did not exercise reasonable care) in providing these sugary soft drinks to students. After all, if a court can conclude, in view of supposedly widely recognized dangers of dodge ball, that it was negligent for a school to permit young children to play the game at school, it can even more easily conclude that, in view of the more clearly known dangers of sugary soft drinks, it is negligent to serve them in schools. ..."

"It could also be argued, in the alternative, that given the well-known dangers of providing sugary soft drinks in schools, the actions of the school board were intentional rather than merely negligent in the sense that they knew with "substantial certainty" that the decision would result in some health harm to at least some of the children (even if that was not their purpose)."

"The initial law suits will be filed in Massachusetts very shortly, and soon thereafter similar class action law suits will be filed in a number of additional states. It therefore would seem to be appropriate if not imperative that school boards and their members take at least some preliminary actions at their earliest convenience regarding their involvement and potential legal liability."

The Rest of the Story

This is, in my view, a quite serious threat of legal action against school boards and individual school board members for allowing soft drinks to be available in schools.

Before even discussing the legal issues, it seems to me that such a threat is inappropriate and is going to cause undue fear among school board members. The apparent intent of the letter, in my view, is to intimidate school boards and their members into removing these machines from the schools in order to eliminate any possibility of their own liability.

This is completely inappropriate for many reasons, not the least of which is the fact that there has never been any case in which school board members have been held liable for allowing a Coke machine in a school.

I don't find it appropriate or responsible to use the threat of legal action on a mass scale, especially if unfounded and without legal precedent, to try to intimidate individuals into action, even if that action is viewed as something that would protect the public's health.

That's the weakest part of my argument.

The strongest part, I think, is my contention that such a lawsuit would be completely baseless and frivolous. In order to prevail, a suing plaintiff would have to show that Coke and Pepsi machines, or the products therein, are dangerous to kids. I'm quite sure that there is no credible evidence to that effect.

I think the strongest possible argument would be that if kids were running around recklessly in school, which they have been known to do, a kid could run into a Coke or Pepsi machine and suffer a serious head injury. As evidence, plaintiffs could introduce as evidence a recent Diet Pepsi commercial in which the New England Patriots were shown drafting a Pepsi machine to join their football team.

I think the case goes downhill from there.

It simply is not the case that drinking a Coke or a Pepsi is harmful. And I'm not aware of any evidence that drinking lots of Coke's or lots of Pepsi's is necessarily harmful. I don't think that one could successfully argue that the availability of Coke and Pepsi in schools is a major cause of obesity in the first place. And if I don't know of any evidence linking Coke and Pepsi availability in schools to obesity, I don't see how a school board member, whose job is not necessarily to keep up with the public health and epidemiologic literature, could be expected to be aware of such evidence. And one certainly could not credibly argue that school board members knew the risks of harm with "substantial certainty."

The analogy to dodge ball is ridiculous. If a dodge ball hits a kid in the face, they will likely be injured. There is no way that drinking a Coke or Pepsi could be harmful to a kid, unless that kid is diabetic, and if that's the case, they should know not to drink it, or at least, to stick with a diet Coke or diet Pepsi. Or, if a Coke or Pepsi were being thrown at kids in lieu of a dodge ball. If kids were using soft drink cans to play "dodge ball," then I think there might be a case.

The rest of the story is that this seems to be an example of public health run amuck. If this is the contribution that tobacco litigation has made to public health, then I think it's a shame. I think it's up to the public health community, and especially to those of us who have been involved in tobacco litigation, to make it clear that this type of behavior is not acceptable, and that it is not a legitimate public health action.

What will be next? A threatening note to parents suggesting that they may be held personally liable if they serve soft drinks or juices to their kids' friends, knowing full well that such beverages are likely to cause harm and to induce obesity?

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