The Perils Of Brushing

All of us have seen lots of them, those words of warning or instruction that appear on products we buy. "Do not eat this sled." "For best results do not apply this floor wax to your teeth." "This antifreeze is not intended for pouring on breakfast cereal." We hardly notice them, let alone consider what they say about the times in which we live. The sled, wax and antifreeze warnings are apocryphal. But you could not know that. After all, The American Enterprise magazine offers these from real life:

On a bag of Fritos: "You could be a winner! No purchase necessary. Details inside." On a bread pudding: "Product will be hot after heating." On a bar of Dial soap: "Use like regular soap." On a hotel shower cap: "Fits one head." On a package of Nytol sleeping aid: "May cause drowsiness." On a string of Christmas lights: "For indoor or outdoor use only." On the packaging of a Rowenta iron: "Do not iron clothes on body."

The warning about a product's being hot after heating may be a response to the famous case wherein a woman successfully sued McDonald's because she was burned when she spilled--she was a passenger in a stationary car at the time, with the cup between her legs--the hot McDonald's coffee she had just bought. (If the coffee had been cool, a complaint about that could have been packaged as a lawsuit.) But try to picture in your mind the event involving two or more heads that the manufacturer of the shower cap was worried about.

Give up? Well, then, answer this: If there are people who press their pants while in their pants, are they the sort of people whose behavior will be changed by a warning on the packaging the iron comes in? If there are people who have done that once, are there any who have done it twice? If not, does that demonstrate that even the dimmest among us has a learning curve that actually curves?

Such questions are stirred by the great toothbrush litigation just getting underway in Chicago. What Charles Dickens did with Jarndyce v. Jarndyce in "Bleak House" as an index of cultural conditions, perhaps some modern novelist will do with Trimarco v. Colgate Palmolive et al.

The et al.'s include some other manufacturers of toothbrushes, and the American Dental Association. All are to be hauled before the bar of justice by Mark Trimarco, speaking for himself and--this is a class-action suit--"all others similarly situated." The others are suffering from what Trimarco's complaint calls "a disease known as 'toothbrush abrasion'." Abrasion a disease? The plaintiff's materials also call it "an injury." And "a distinct clinical entity caused by toothbrushes of the following bristle types: firm, medium and soft, both natural and synthetic."

The complaint says people suffering from this self-inflicted injury are consumers who were not "informed or warned about the danger of toothbrush abrasion." And: "It was the duty of the defendant manufacturers to furnish a product, i.e., toothbrush, which was in reasonably safe condition when put to a use in a manner that was reasonably foreseeable considering the nature and intended function of the product."

But the toothbrushes "were unsafe and unreasonably dangerous for their intended use in that the packaging contained no warning as to the risks of toothbrush abrasion or instructions on how to brush to avoid toothbrush abrasion." The American Dental Association is a defendant because it gave its seal of approval to the toothbrushes.

The complaint charges negligence because the manufacturers knew or should have known about the disease/injury/clinical entity since "at least 1949" but continued to manufacture toothbrushes that were "likely" to cause abrasion. Likely? If the result is "likely," you would think that the class of plaintiffs would be a majority of all who brush their teeth.

If toothbrushes are, as charged, "unreasonably dangerous" because of the absence of warnings and instructions, try to imagine the words which, if printed on toothbrush packages, would immunize manufacturers against such a complaint. "Warning: In brushing, too much is too much." "Instructions: Hold brush in hand. Insert the end with the bristles into your mouth. Move brush up and down. Stop before you wear out your teeth." Or perhaps: "Look, this toothbrush is not normally a dangerous implement, but neither is it intended for ninnies who can't figure out how to brush their teeth without doing them irreparable harm."

This suit is just part of a great American growth industry--litigation that expresses the belief that everyone has an entitlement to compensation for any unpleasantness; litigation that displaces responsibility from individuals to corporations with money. This industry was, of course, up and running before the tobacco litigation, but that taught lawyers just how lucrative it could be to blame individuals' foolishness on, say, Joe Camel.

Now many cities are suing gun manufacturers for the "costs"--the numbers are guesses--of shootings. In a new wrinkle in tort law--a move that would make a trial lawyer blush, if that were possible--individuals who have been shot are suing groups of manufacturers without claiming to have been injured by a product made by any of the targeted manufacturers.

If you--your teeth are suddenly feeling a bit abraded, are they not?--want to climb aboard the latest gravy train pulling out of the station, log on to You will be greeted warmly: "Welcome to the Toothbrush Lawsuit Web Site." Illinois residents can dial 1-877-sore gums. From the Web site you will learn that the disease is "progressive." That means not that Al Gore likes it, but that it gets worse if you keep making it worse. You also will learn that toothbrush abrasion "is most prevalent in those with good oral hygiene, i.e., people who brush their teeth." And "there are studies that show that people who do not brush their teeth, never develop" symptoms of toothbrush abrasion. Consider yourself warned.

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