The not so "sweet surprise": lawsuits blaming big sugar for obesity-related health conditions face an uphill battle.

• Author: Wicker, Catherine Srithong

1. INTRODUCTION II. A RECENT LAWSUIT LINKING HFCS CONSUMPTION TO DIABETES IS REMINISCENT OF PELMAN V.MCDONALD'S CORP A. The Possible Link Between HFCS and Global Diabetes Prevalence B. The Latest Battle in the Fight Against Big Food III. USING EPIDEMILOGIC EVIDENCE TO ESTABLISH CAUSATION IN PRODUCT LIABILITY CASES IV. THE USE OF SCIENTIFIC EVIDENCE TO PROVE CAUSATION UNDER DAUBERT AND ITS PROGENY A. Texas's Strict Criteria for Determining Scientific Reliability B. The Problems with a Judge-Made Threshold for Admissibility of Epidemiologic Evidence V. AN EPIDEMIOLOGIC STUDY SHOULD BE EVALUATED ON THE BASIS OF ITS DESIGN, CONDUCT, AND ANALYSIS A. Assessing the Validity of an Epidemiologic Study 1. Did Researchers Attempt to Minimize Confounding? 2. Were There Any Biases that Affected the Study's Validity? B. Evaluating the Study's Design and Conduct 1. Was the Chosen Study Design Appropriate to Answer the Research Hypothesis? 2. How Were Study Subjects Chosen? 3. How Did Researchers Define Exposure and Outcome Measures? 4. How was Dietary Intake Measured? C. Is there Evidence of a Causal Relationship using Hill's Criteria? VI. CONDUCT-BASED DEFENSES POTENTIALLY LIMIT THE LIABILITY OF HFCS MANUFACTURERS A. Assumption of Risk B. Contributory Negligence C. Comparative Responsibility VII. APPORTIONING LIABILITY AMONG SEVERAL MANUFACTURERS IS A BARRIER TO RECOVERY FOR HFCS PLAINTIFFS A. The Market Share Liability Approach B. Sindell's "Fungibility" Requirement As a Barrier to Recovery VIII. ISSUES OF PERSONAL RESPONSIBILITY AND PUBLIC ACCOUNTABILITY LIE AT THE HEART OF FOOD LAWSUITS A. Food Litigation as the New Tobacco B. Legislative Attempts to Curb Food Litigation IX. CONCLUSION I. INTRODUCTION

   Stop into any bodega in Brooklyn, New York, and there is sure to be soda sweetened with corn syrup. (1) In Brooklyn alone, about "139 million gallons of soda are consumed each year, sweetened by 20,000 acres of corn." (2) Driving a cab through his Brooklyn neighborhood of Fifth Ave. and Park Slope, Fray Mendez reminisces about "Colonial Grape," the "sweetest grape soda [he] ever drank." (3) At his peak, he drank two liters of the soda each day, maybe more. (4) At that time, Fray was also over 300 pounds, a size sixty in pants, and completely unaware that drinking soda was a problem. (5) Although he lost approximately 100 pounds by eliminating soda from his diet, Fray was recently diagnosed with type 2 diabetes. (6) Unfortunately, he is no stranger to the disease. Fray's parents and grandmother died as a direct result of their diabetes and his sister has been a diabetic for years. (7) Fray recalls the pain his father had in his toe for six months before being diagnosed with diabetes. (8) He describes how his father had his toe amputated; then his foot, his leg below the knee, and finally his leg above the knee. (9) When doctors wanted to begin amputating his other leg, Fray's father had had enough and gave up. (10)

   Fray's story is a stark reality for many Americans, as we have become a society that walks less and eats more. As a culture, we have decreased the importance of physical activity, while simultaneously creating an unhealthy food environment. (11) Unfortunately for Fray, he may be without a legal remedy to sue to the makers of his favorite grape soda. Judicially created thresholds of admissibility for scientific evidence have made it increasingly difficult for food plaintiffs (12) to prove that a certain food ingredient, such as high fructose corn syrup (HFCS), caused their type 2 diabetes.

   Because obesity and its associated health problems have been largely attributed to poor self-control, laziness, and various other personal failings, society has been unwilling to assign blame to food manufacturers for their role in contributing to this problem. But, as consumers are becoming more aware of the significantly harmful effect that poor diets can have on a person's heath, the scales may be tipping in favor of bringing "Big Food" (13) to court.

   Food manufacturers, however, are not exactly vulnerable. Armed with precedent disputing the causal link between consumption of fast food and adverse health effects, (14) judicially-created barriers to admitting epidemiologic evidence, (15) and the defense of personal responsibility, (16) food plaintiffs face an uphill battle.

   This Comment explores that reality. It examines the various challenges that consumers face in holding food manufacturers liable for the dietary impact allegedly causing obesity-related health conditions. Part I briefly traces the emergence of HFCS in America's food supply and examines its possible role in the development of type 2 diabetes. It discusses previous litigation against the food industry for allegedly causing obesity and associated health conditions; the Comment then describes a recent lawsuit targeting manufacturers of HFCS for allegedly causing a young girl's type 2 diabetes. Part II highlights epidemiology's role in demonstrating causation in product liability suits. Part III examines the current standard of admissibility for epidemiologic evidence in products liability cases after Daubert v. Merrell Dow Pharmaceuticals, Inc. (17) Additionally, it discusses how various courts have construed Daubert as authorizing the creation of judge-made quantitative thresholds for admitting epidemiologic evidence. (18) Part IV proposes that these judicially created standards be abandoned and suggests alternative criteria for evaluating the reliability of an epidemiologic study offered into evidence. Part V discusses various conduct-based defenses: assumption of risk, contributory negligence, and comparative fault, which limit food manufacturers' liability. Part VI explores the potential for market share liability to provide food plaintiffs a remedy by relaxing the burden of proving causation. Finally, Part VII highlights legislative attempts to curb food and beverage litigation, policy concerns, and the future of lawsuits targeting Big Food.

2. A RECENT LAWSUIT LINKING HFCS CONSUMPTION TO DIABETES IS REMINISCENT OF PELMAN V. MCDONALD'S CORP.

   In 1911, Japanese food scientists discovered a way to produce a sweetener cheaper than sugar called high fructose corn syrup (HFCS). (19) HFCS is six times sweeter than cane sugar and could be made from corn. (20) This was a boon to the corn industry, whose production rose to an all-time high in the mid-1910s. (21) HFCs was economically produced from the huge surplus of corn grown by American farmers and thus significantly decreased the production costs of high-sugar products. (22)

   Initially, no warnings were raised about the significantly different metabolic path fructose takes in the human body. (23) Whereas sucrose--or regular table sugar--is chemically broken down before arriving in the liver, fructose bypasses this process and arrives in the liver almost completely intact. (24) Although this feature of fructose, termed "metabolic shunting," raised concern among food scientists, governmental bodies such as the USDA, did not explore the issue in depth. (25)

   Eventually, as mass production techniques made HFCS more readily available to food manufacturers, HFCS found its way into a wide assortment of foods: as a substitute for sucrose in carbonated drinks, candy, baked goods, canned fruits, and even dairy products. (26) Because of its unique chemical attributes, HFCS could be used in frozen foods to prevent freezer burn and in baked goods to enhance their natural appearance. (27) Indeed, corn syrup sweeteners now comprise greater than 20% of total daily carbohydrate intake, an increase of greater than 2100% since the beginning of the century. (28)

   1. The Possible Link Between HFCS and Global Diabetes Prevalence

      Increasing scientific evidence lends support to the hypothesis that fructose consumption increases diabetes risk. (29) The increasing global prevalence of obesity and type 2 diabetes mirrors the worldwide increase in consumption of processed, Western style foods. (30) The increased availability and consumption of HFCS-sweetened beverages is of particular concern because it provides an "an easy vehicle for excessive sugar intake." (31)

      Amid increasing public health alarm at the "concurrent global epidemics" of obesity and type 2 diabetes, scientists began investigating the possible link between consumption of HFCS and the global rise in the prevalence of diabetes. (32) Researchers found that countries utilizing HFCS in their food supply as an alternative sweetener had a diabetes prevalence rate approximately 20% higher than in countries where HFCS is not used. (33)

   2. The Latest Battle in the Fight Against Big Food

      On June 17, 2013, a lawsuit was filed in a New York District Court on behalf of a fourteen-year-old girl claiming that HFCS caused her type 2 diabetes. (34) This novel suit sought to hold HFCS manufacturers strictly liable for creating an unreasonably dangerous product, without warning consumers of its potential adverse health consequences, which include development of type 2 diabetes. (35) The complaint alleged that defendants "knew or should have known that HFCS was a cause of type of diabetes" and deliberately concealed this fact. (36) The plaintiff also claimed that the defendants were negligent "in their marketing, distribution, warning, testing and instructions to ... consumers of the risks associated with the consumption of their product." (37) As a result of the defendants' actions, the plaintiff sought five million dollars in damages for her injuries, which included the development of "type 2 diabetes, loss of enjoyment of life, pain and suffering, emotional distress ... and lifelong and permanent medical complications^] including the probability of surgery and shortened life expectancy." (38) The court ultimately dismissed plaintiff's claims, noting that she offered "limited facts" to demonstrate that her consumption of foods containing HFCS--specifically HFCS manufactured by...