Pelman v. McDonald’s Corp., 2003 U.S. Dist. LEXIS 707, looks at the ability of obese children to recover damages against a fast food franchise. At the outset J. Sweet stated that this “opinion is guided by the principle that legal consequences should not  attach to the consumption of hamburgers and other fast food fare unless  consumers are unaware of the dangers of eating such food.” Accordingly, if  

Moreover, because the case had the potential to unleash an epidemic of “McLawsuits” the judge was cognizant of his duty "to limit the legal consequences of wrongs to a controllable degree and to  protect against crushing exposure to liability." McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d Cir. 1997)(quoting Strauss v. Belle Realty Co., 482 N.E.2d 34 (1985)).

The plaintiffs allege five causes of action as members of a putative class action against McDonalds for the medical conditions that consumption of McDonald’s produces. Counts I and II were based on deceptive acts and practices; specifically that a value meal was not a value. See Consumer Protection Act, New York Gen. Bus. Law §§ 349 and 350, and the New York City Administrative Codes, Chapter 5, 20-700 et seq.) Count III alleged that McDonalds acted negligently “in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects.” Count IV alleged “McDonalds failed to warn the consumers of McDonalds' products [that] a diet high in fat, salt, sugar and cholesterol could lead  to obesity and health problems.” Count V alleged McDonalds “acted negligently in marketing food products that were physically and psychologically addictive.” In response McDonalds argues that plaintiffs' claims must fail because: 1.) they are not plead with sufficient specificity; 2.) acts or practices “cannot be deceptive if the consuming public is already aware of the ‘concealed’ characteristics; and 3.) the plaintiff’s claims are pre-empted by federal law; see Federal Nutritional Labeling  and Education Act, 21 U.S.C. § 343(q)

The court in granting McDonald’s motion for a 12(b)(6) dismissal systematically and comprehensively addressed each of these issues. (Only selected highlights are commented upon here.) The court observed that the plaintiff had failed to specify a single deceptive practice that McDonalds engage in and noted that McDonalds’ advertisements amounted to puffery. In the court opinion, for the plaintiff’s case to survive it

However, all the plaintiffs asserted was that McDonald’s “foods contain high levels of cholesterol, fat, salt and sugar, and that the foods are therefore unhealthy.” Further it “is well-known that fast food in  general, and McDonalds' products in particular, contain high levels of  cholesterol, fat, salt, and sugar, and that such attributes are bad for one.” See Caroline Foulkes, Food & drink - Can't  do the cooking? Burger it. Birmingham Post, at P46 (9/21/02); Barbara F. Meltz, Just Say 'Phooey' to  the Food/Fun Link, Boston Globe, at H6 (11/14/02);John DeMers, Fat Chance - Fast-food diet increases odds of  obesity, Houston Chron. at 1, (9/27/01). But, according to the court, as

The court did allow that the plaintiff might have a cause of action if they could show that additives to McDonald’s products were harmful and the public was unaware of the potential consequences of ingestion of the additives.

Even if all of the above were true, the plaintiff’s case still faces an uphill battle on causation. To show proximate cause, a plaintiff must establish that the defendant's conduct was a substantial factor in bringing about the harm. Elsroth  v. Johnson & Johnson, 700 F. Supp. 151, 166 (S.D.N.Y. 1988) (citing Derdiarian  v. Felix Contracting Corp., 414  N.E.2d 666 (1980)); see also Restatement (2d) of Torts § 431 (1965). “No reasonable person could find probable cause based on the facts [that required] ‘wild speculation.’" Price v. Hampson, 530 N.Y.S.2d 392, 394 (4th Dep't 1988). The court then took notice that the plaintiff’s complaint did not specify how often the plaintiffs ate at McDonalds; therefore the “class action proposed by plaintiffs could consist entirely of persons who ate at McDonalds on one occasion.” Consequently, “any number of other factors [that] potentially could have affected the plaintiffs' weight and health” might be operative in causing the plaintiff’s obese condition. The court indicated that it was unwilling to wildly speculate just how frequently the plaintiff dined at McDonalds.   

In reading J. Sweet erudite opinion, it is impossible to miss that the judge’s analysis was heavily biased by his stated preamble: in this case it was important to reach a judgment favorable to McDonalds to prevent an epidemic of McLawsuits. Perhaps this is why J. Sweet, after dismantling the plaintiff’s case, granted the plaintiffs leave to amend their case. Citing Fed. R. Civ. P. 15(a)("leave [to amend] shall be freely given when justice so requires"); Foman v. Davis, 371 U.S. 178 (1962).

ROUND III OF McFat Litigation: DON’T HOLD THE PICKLES, CANCEL THE ORDER - NY Dismissed the refiled Fat Lawsuit - McFat Litigation III - McFat Litigation III - Pelman v. McDonald's Corp., No. 02 Civ. 7821 (S.D.N.Y. 2003) - top of page

Pelman v. McDonalds Corp., 2003 U.S. Dist. LEXIS 707, takes another look at the nascent obesity litigation industry. Because this review is intended to be a true “brief,” and not the 10,000 word essay that Kafka chided lawyers for labeling a “brief,” interested readers are encourage to read the opinion in its entirety.

The case at bar is a class action law suit brought by two obese teenagers that allege that their obesity was brought on by the business practices of McDonalds. The suit, which was predicated on a number of theories, experienced a set back in January 2003 when J. Sweet denied McDonalds’ Rule 12(b)(6) motion for summary judgment. Pelman v. McDonald’s Corp., 2003 U.S. Dist. LEXIS 707, reviewed at 12(2) L.M.P. 26 (2003). More specifically, although J. Sweet recognized that deficiencies exited in the plaintiffs’ pleading, the judge outlined how the case should have been plead, and then allowed the plaintiff to file an amended pleading. This opinion is based on the amended pleadings.

I. J. Sweet began by framing the issue in this case as one of determining the breadth of personal responsibility underlies much of the law: where should the line be drawn between an individual's own responsibility to take care of herself, and society's responsibility to ensure that others shield her? Laws, both statutory and common, are often created to protect individuals who would otherwise not be able to protect themselves. See NUTRITION LABELING AND EDUCATION ACT of 1990, Pub. L. 101-535, 104 Stat. 2353 (NLEA); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liability Litig., 282 F.3d 220, 225 (3d Cir. 2002); In re Breast Implant Cases, 942 F. Supp. 958, 959-60 (S.D.N.Y. 1996). But in creating these laws, the guiding principle should be that legal consequences should not attach unless the consuming public is unaware of the danger associated with the product. Accordingly, if consumers know (or reasonably should know) the potential ill health effects of eating at McDonalds, they cannot blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of super-sized McDonalds products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonalds' knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds' products involve a danger that is not within the common knowledge of consumers. Unfortunately for the plaintiffs, their case failed again because they did not allege sufficient facts with specificity to satisfy either two criteria above. Therefore, the case was dismissed with prejudice; because plaintiffs who had been given a “second bite of the apple” were not entitled to re-plead their case.

II. Now for a few details. The plaintiffs asserted the same cause of action as in January 2003: Counts I and II were based on deceptive acts and practices; specifically that a value meal was not a value. See Consumer Protection Act, New York Gen. Bus. Law §§ 349 and 350, and the New York City Administrative Codes, Chapter 5, 20-700 et seq.) Count III alleged that McDonalds acted negligently “in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects.” Count IV alleged “McDonalds failed to warn the consumers of McDonalds' products [that] a diet high in fat, salt, sugar and cholesterol could lead to obesity and health problems.” Count V alleged McDonalds “acted negligently in marketing food products that were physically and psychologically addictive.” As in the first case, McDonalds raised the same three defenses: (1) the pleading lack specificity; (2) the hamburger chain concealed nothing for the consuming public; and (3) the case was pre-empted by NELA.

The court assiduously dissected the instant case with the same zeal that it did in its January 2003 opinion. Although the plaintiffs had demonstrated that McDonalds failed to provide nutritional information on its products, the plaintiffs needed to “show why the omission was deceptive -- a duty they have shunned.” Similarly, merely making children the target of advertising, without more, is not a deceptive practice. As for the plaintiffs’ claim that McDonalds negligently manufacturers it hamburgers by adding high levels of fat, salt and sugar, it too must fail, according to the court, because the public is aware of the dangers of hamburger consumption. Moreover, the bar for liability for injury from excess food consumption is high. RESTATEMENT (2D) OF TORTS, § 402A, cmt. i. n19 (the “article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics)(the court was aware that McDonalds, in it brief, did not quote the part of this re-statement that dealt with tobacco); cf. Burton v. R.J. Reynolds Tobacco, 205 F. Supp. 2d 1253, 1254-55 (D. Kan. 2002)(noting that excess consumption does not vitiate liability when company has intentionally altered a substance to induce addition). Thus, the key to success in food litigation appears to be whether a consumer is capable of exercising a free will. As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. It is only when that free choice becomes but a chimera -- for instance, by the masking of information necessary to make the choice, such as the knowledge that eating McDonalds with a certain frequency would irrefragably cause harm -- that manufacturers should be held accountable.

Another problem with the plaintiffs’ case was causation. A “number of factors other than diet may come into play in obesity;” these factors were at best incompletely addressed by the plaintiffs. At the very least, the plaintiffs needed to “show that a McDiet is a substantial factor despite these other variables.” This the plaintiffs did not do. Interesting, in footnote 30, J. Sweet suggested that the plaintiffs would have faired better if they had brought multiple individual cases rather than a class action. This is because there are so many environmental factors involved in obesity that it would be difficult to demonstrate typicality as required by FED. R. CIV. PRO. Rule 23(a); see Marisol A. v. Guiliani, 126 F.3d 372, 375 (2d Cir. 1997). Thus, J. Sweet implied that demonstration of causation might have been easier in an individual action.

III. J. Sweet’s opinions in McLawsuit I and II are likely to be cited for years to come as America copes with the obesity epidemic. In the past decade the number of obese individuals, defined as those individuals with a BMI > 30, has doubled. George A. Bray, Contemporary Diagnosis and Management of Obesity, 2nd ed., Handbooks in Health Care Co., Newtown, Pa. (2003). Presently, 64% of Americans are obese. Sharon Epperson, The Obesity Charge, Time, Sept. 8, 2003, p. 100. The estimated of the cost of obesity-related disease varies from the conservative figure of $39 billion (Douglas A. Kysar, Sustainability, Distribution, and the Macroeconomic Analysis of Law, 43 B.C. L. Rev 1 (2001)(citing Scott Petersen, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 Gonz. L. Rev. 105, 108 (1994)); to a high estimate of $240 billion per year (Eric Schiosser, Fast Food Nation, Random House Audible (2001)(this book is a bit inflammatory in its desire to bash McDonalds)). On a more practical level, all of this obesity means that: (1) an estimated 120,000 individuals will under go bariatric surgery this year, at an average cost of $25,000 per procedure (Milt Freudenheim, Hospitals Pressured by Soaring Demand for Obesity Surgery, NYT Aug. 29, 2003 (internet edition)); and (2) the average tax payer “shells out” $150-200/y to finance obesity-related medical expenditures for Medicare and Medicaid recipients. (Epperson, supra.) At a time when Corporate America can hardly afford to provide health care benefits and still compete in the global market place (Thomas R. McLean and Edward P. Richards, Health Care’s “Thirty Year War”: Origins and Dissolution of Managed Care, ____ N.Y.U. L. R. ____ (2004)) who is going to pay for all of the obesity-related disease and obesity-avoiding medical treatment? This problem is compound by the fact that, not only is much of medical literature on obesity tainted; but also, some of the most prestigious medical journals have turned a blind eye to the tainted data. Jerome P. Kassirer, Financial Conflict of Interest: An Unresolved Ethical Frontier, 27 Am. J. L. and Med. 149, 153 (2001). Sounds like another good topic for the fellows and members of the ACLM to contemplate.