Starburst Case Spurs Law Reform Debate

Fruit CHEWS!

It says it right there on every wrapper of Starburst candy.

But that's not stopping a Michigan woman from filing a lawsuit claiming the candy's manufacturer, Mars., Inc., acted irresponsibly by not putting a warning on the label that the chewy, fruity confection may be hazardous to denture wearers.

“I think it’s a ludicrous lawsuit,” said Ted Frank, who formed the Liability Project through the American Enterprise Institute to combat frivolous lawsuits. “It’s an example of why we have such outrageous warnings on everyday products.”

The suit, brought by denture wearer Victoria McArthur of Romeo, Mich., and seeking $25,000 in damages from Mars, claims McArthur suffered "permanent damage" when she chomped down on a Starburst CHEW in 2005.

Click here to view a video report from MyFoxDetroit.com.

Some law reform advocates believe that McArthur's case, among thousands of others like it, highlights how easy it is to file a lawsuit in America for just about any silly reason.

Frank recalled that when he was a child, his tooth fell out while he was eating a Tootsie Roll. But even as a kid, Frank said he knew the candy manufacturer wasn't responsible since chewy candies are supposed to be – CHEWY.

“If she got a piece of candy that was not what it was supposed to be, if it had it been altered with glue in it, then there would be cause for a lawsuit,” said Frank, who serves on the advisory board of Common Sense; Restoring Common Sense to America and blogs about the rising number of lawsuits filed by Americans at overlawyered.com.

Another group, Sick of Lawsuits, comprising 165,000 frivolous lawsuit advocates, pushes for tort reform through state or county-wide groups such as the Michigan Lawsuit Abuse Watch (MLAW).

"It’s a regular Starburst and she did hurt her jaw," said Bob Dorigo Jones, president of the MLAW. "How is this any different than anyone that bites into a corn on the cob or a carmel apple and hurts their jaw, too? It’s just a lawyer that saw a company with deep pockets."

Dorigo has held a Wacky Warning Label contest for the last 10 years in Michigan, urging people to turn in labels that are so obvious that they become humorous. Last year's winner received $500 for turning in a sticker from a laundrymat that said: "Do not put any person in this washer."

McArthur's claim falls under the "open and obvious law doctrine," Dorigo said, which basically means denture wearers should know the obvious risk of biting into a candy labeled "CHEWS."

"It’s the reason that we don’t sue someone that sells us the carmel apple or an ear of corn in the grocery store," Dorigo said. "That’s the only way we’re allowed to have a free enterprise system in America."

McArthur, however, told MyFoxDetroit.com that after three CHEWS, her jaw was “locked,” and she was in pain. McArthur’s lawyer, Brian Muawed, said that since the incident his client has been suffering from temporal mandibular joint dysfunction, disrupting her eating, talking and sleeping.

Muawed said that McArthur originally tried to negotiate a settlement with Starburst’s insurer to pay for her rehabilitation, but that Mars declined.

The case has the potential to cost anywhere from several thousand dollars in preliminary stages to hundreds of thousands of dollars if it’s taken to trial, Frank said. Typically, the lawyer would collect one-third of any settlement.

Many lawyers file suits with the intention of never actually going to trial, because they are looking for settlement money, Dorigo said. Even if the case is thrown out, it's hard to gather attorney's fees from the plaintiff.

"That's what's happening with the pants case [in Washington, D.C.]," Dorigo said. "Many people think, 'Justice has been served, they threw the case out.' But no, the dry cleaners, a family business, had to spend lots of money defending themselves."

In response to McArthur's case, MLAW plans to publicise to Michigan citizens their view of the case and lobby the judge to throw it out on grounds that it's frivolous, meaning a judge thinks that no reasonable person could find in the plaintiff's favor and that the suit was brought in bad faith.

Frank, however, noted that cases that make it to a jury still can seem frivolous to "reasonable" people, but they generate hundreds of thousands of dollars in settlements.

“This one lawsuit isn’t a big deal, but it’s symptomatic of a much larger problem,” Frank said. “As meritless lawsuits go, this is a minor one, but it is indicative of the lawsuits that cause Americans billions of dollars a year.”

Advocates of law reform involving frivolous cases, like the Citizens Against Lawsuit Abuse (CALA) and Sick of Lawsuits, argue that even though cases like McArthur’s probably won’t cause too much damage, they do tie up time in court, causing extensive delays for more serious cases.

Dorigo added that suits can discourage companies from offering products to avoid paying fees in court.

"Judges too often operate under the radar, thinking everyone deserves their day in court," Dorigo said. "But we want to say that everyone does not deserve their day in court."